Contractor can file lien against individual unit
Q. Can a contractor performing work on an individual condominium unit file a lien against that unit for nonpayment?
A. Yes, a contractor performing work in an individual unit can record a mechanic's lien against the individual condominium unit. The contractor does need to be careful though. I have seen contractors who mistakenly record the lien against all of the units in the condominium building, rather than against the individual intended unit. That would be slander of title against the "innocent" units.
Similarly, a contractor who does not get paid for work performed on the common elements of the condominium association has lien rights against all of the individual units in the association. Each owner's potential liability for the contractor's lien would be based on their percentage of ownership in the common elements, and not for the entire sum due to the contractor.
Q. A board member of our condominium association passed away. Can the rest of the board appoint someone now to fill the vacancy and then ratify that decision at the next board meeting in three months?
A. The vacancy can be filled by the board; however, this action must take place at a board meeting. The board could not fill the vacancy before a meeting and then later ratify that decision at a future board meeting. A vacancy on the board can be filled until the next annual meeting by two-thirds vote of the remaining members of the board. The owners, at the next annual meeting, would then vote to fill the unexpired time, if any, left of the term of the board member whose seat was vacated. However, if a vacancy is filled by the board, the owners may file a petition with the board to hold a meeting of the owners. The owners would then vote to fill the vacancy for the balance of the term.
Q. Our board regularly meets to discuss matters concerning our condominium at what we refer to as "workshops." We don't vote on anything at these workshops. Does our board have to post a notice of meeting for these board workshops?
A. At least one Illinois appellate court has found that "workshops" are board meetings if a quorum of the board is present. That is, a "board meeting" encompasses discussions by a gathering of a quorum of the board; not just a meeting where the board makes decisions. As a result, notice of the workshop meeting attended by a quorum of the board must be given. Moreover, owners must be permitted to attend these workshops (except for portions of such gathering permitted to be closed to owners). Minutes would have to be taken as well.
Q. What is the difference between a condominium community and a common interest community?
A. In a "nutshell," a condominium is property that is submitted to the provisions of the Condominium Property Act by the recording of a declaration.
Common interest community means real estate other than a condominium or cooperative, with respect to which any person, by virtue of his or her ownership of a partial interest or a unit therein, is obligated to pay for the maintenance, improvement, insurance premiums or real estate taxes of common areas. Those common areas are described in a declaration, which is administered by an association. Common interest communities may include, but are not limited to, an attached or detached townhouse, villa or single-family home. Note, too, that a common interest community does not include a master association.
• 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.