Board ignores its own harship provision

Q. The declaration of my brother's association restricts leasing. The declaration does include a "hardship" provision that permits the board to grant exceptions to the leasing restriction. My brother is in the U.S. military and is being deployed overseas on active duty. He applied to the board of his association for a "hardship" lease, and advised the board that he would hire a property manager to oversee the unit in his absence. The board stated it did not want to establish a precedent by permitting a unit to be leased, and denied my brother's request to lease his unit. Did the board act properly here?

A. When an association client comes to me with an issue like this, the first thing I ask them is "How would this look on the 6 o'clock news?" The answer here should be obvious, and for good reason.

A "hardship" provision in a lease restriction amendment allows a unit owner under a particular hardship to make application to the board for permission to lease his/her unit for a limited period of time when leasing would otherwise be prohibited. The following are examples of the types of hardships, but by no means exclusive, that a board should generally consider:

• Sudden transfer of a unit owner to a new job location requiring the lease of the unit on a temporary basis.

• Illness of the unit owner or a relative that requires a temporary absence, or if the resident is in a rehabilitation facility for an extended period of time.

• If a soldier is deployed for training or a tour of duty.

The common thread here is "temporary" absence of the owner with the intent to return to the unit.

The declaration amendment you describe has a hardship provision, so the board needs to grant a hardship exception to the lease restriction when the facts and circumstances justify the granting of a hardship. That is, the board cannot simply deny all requests because it does not want any units to be leased.

I cannot think of a more appropriate reason to grant a hardship exception to a leasing restriction as when a member of the U.S. military is being deployed on a tour of duty in service to our country. From a legal standpoint, the denial of your brother's request looks like an abuse of discretion by the board, and the board needs to reconsider its decision. The board should also recalibrate its moral compass.

Q. Our association has a three-member board, and each board member is elected for only a one-year term. As a result, we end up with a lot of turnover on the board, and the learning curve extends well into the new board term. Is there anything we can consider to maintain some continuity on the board?

A. The association should consider amending its declaration to provide for staggered board terms. This would require the term of a board member be increased to two years. The staggering would be accomplished by providing for the election of three candidates at the first meeting after recording of the amendment. Two candidates would be elected for a two-year term and one candidate would be elected for a one-year term at the first meeting after recording of the amendment.

Successors to these board members would serve for a two-year term (rather than the existing one-year term), resulting in the election of two or three board members in alternating years. The existing one-year terms would not perpetuate the staggered terms. This should create "continuity" and reduce board turnover.

• 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.