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Handling unit control when owner dies

Q. An owner in our association recently died. A person claiming to be one of the adult children of the deceased owner contacted the association and demanded access to the unit, and demanded the association provide her with the unit key the association maintains for emergencies and lockouts. Another supposed adult-aged child of the deceased owner contacted the association and stated not to let anyone in the unit but him! The board has not provided a key to the unit to anyone as a result. What is the association supposed to do in this situation?

A. In general, if an owner dies with a will, the executor of the estate would have control of the assets, and could be provided a key and access to the unit. If an owner dies without a will, an administrator needs to be appointed, who would then control the assets of the estate, and who could be provided a key and access to the unit.

Therefore, a person claiming to represent the estate of the deceased owner needs to demonstrate they are either the executor or administrator of the estate of the deceased owner, or authorized by them, through appropriate documentation. A "self-proclamation" that there are, or that they are a relative of the deceased owner, is not enough evidence of authority to deal with the assets of the deceased owner.

Q. I am the secretary of our 475-unit, self-managed association, comprised of single-family homes and townhouses. At our board meetings, the board does not do what I feel is correct when we discuss certain items. There are subjects that come up that I feel we should be discussing in executive session, but we discuss them at open meetings. Are we violating the Open Meetings Act? Any help will be appreciated.

A. It sounds like you are a common interest community association. The Illinois Open Meetings Act does not apply to association meetings.

However, the Common Interest Community Association Act also includes language governing what portions of board meeting may be closed to owners. Specifically, section 1-40(b)(5) provides that meetings of the board shall be open to any unit owner, except for any portion held to (1) discuss litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal, or when the common interest community association finds that such an action is probable or imminent, (2) to consider third-party contracts or information regarding appointment, employment or dismissal of an employee, or (3) to discuss violations of rules and regulations of the association or a member's or unit owners unpaid share of common expenses.

It is important to note that a board is not required to discuss the above items in a closed session, and a board could discuss these topics at an open meeting with owners present. That is not necessarily a good idea though.

Moreover, any vote on matters permitted to be discussed in a closed session of the board must be taken at a meeting or portion thereof open to any unit owner. That is, the board cannot conduct a vote in the portion of the meeting closed to owners.

Effective January 1, 2017, the topics that can be discussed in portions of a board meeting that can be closed to owners is revised and expanded to include "third party contracts or information regarding appointment, employment, engagement or dismissal of an employee, independent contractor, agent or other provider of goods and services," and consultation "with the association's legal counsel." A similar change has also been made to the Condominium Property Act.

• 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.

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