When board approval is needed to connect two units
Q. I am concerned about what a condominium owner did in our building. The owner owns one unit and the owner rents the adjacent unit from another owner. He then removed the firewall between the units to create one large space, without the board's permission. Is this permissible?
A. Your concern is well placed. Section 29 of the Condominium Property Act addresses the removal of an intervening wall between units, when the two units are owned by the same person.
A unit owner owning two or more units has the right, subject to such reasonable limitations as the condominium instruments may impose, to remove or otherwise alter any intervening partition. This can be done so long as the action does not weaken, impair or endanger any common element or unit. In that situation, the unit owner must notify the board of managers of the nature of the removal or alteration at least ten days prior to commencing work.
This provision of the law would not be applicable where, as here, the two adjacent units are owned by separate individuals. The removal of the intervening wall between units would have required board approval, and that might be approval the board could give under these circumstances.
Q. I want to display a "Don't Tread On Me" flag in the limited common element balcony of my condominium. A board member of the association told me language in the association's condominium declaration prohibits this, unless I obtain approval of the board. Doesn't the Condominium Property Act permit me to fly this flag?
A. The display of flags is governed by Section 18.6 of the Condominium Property Act. A board may not prohibit the display of the "American flag" on or within the limited common areas and facilities of a unit owner or on the immediately adjacent exterior of the building in which the unit of a unit owner is located.
The American flag permitted to be displayed under Section 18.6 of the ICPA is defined in Chapter 1 of Title 4 of the U.S. Code. It states that "The flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eights stars, white in a blue field." It further states that "On the admission of a new state into the Union, one star shall be added to the union of the flag."
The "Don't Tread On Me" flag, while of some historical significance, is not the American flag under the U.S. Code. The display of this flag on the limited common element balcony, given the covenants in your declaration, would require board approval.
Q. New board members were elected at our annual meeting. Immediately after the annual meeting, the board met in private and decided who would serve as president, secretary and treasurer. When I questioned this practice, I was told this was permitted by the association's bylaws. Was the election of officers in this manner appropriate?
A. This was not appropriate. The election of the officers - that is, the president, secretary, treasurer - must be conducted by the board at a duly called and held board meeting or portion thereof open to all of the owners. Merely meeting in private after the annual meeting does not meet these requirements.
The governing documents for many associations require the board to meet immediately after the annual meeting to elect officers. However, this still requires proper notice and that the election be conducted in a portion of the meeting open to all unit owners.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.