Assessment notices are not required

 
Posted12/3/2016 7:00 AM

Q. Under the Condominium Property Act, is the owner of a unit obligated to pay the monthly assessment whether or not he receives a monthly statement from the association?

A. Section 9(f) of the Condominium Property Act states that "payment of any assessment shall be in amounts and at times determined by the board of managers." Section 9(c)(1) of the act states "the budget shall also set forth each unit owner's proposed common expense assessment."

 

Further details, like how often (e.g., monthly) and when assessments are payable (e.g., on the first day of every month) would typically be set forth in the association's declaration. This information from the declaration, together with the information provided in the adopted budget as to the unit's assessment amount, should provide enough information to an owner to know how much and when to make assessment payments. However, at a minimum, the association should advise owners if the annual budget was adopted.

That said, some associations adopt rules/policies about statements or coupon books, but that would vary from association to association. But there is no legal, statutory requirement that owners receive a monthly statement.

Q. Our board has three members, per the bylaws. The bylaws also state "a majority of the total number of members on the board shall constitute a quorum." Because of scheduling issues, we never have more than two board members present at a meeting, and they don't agree on anything. As a result of differences of opinion between the two board members who attend, no motions are ever approved. What constitutes a quorum of the board if there are three members?

A. Given the language of your governing documents, the presence of two board members at a board meeting would constitute a quorum.

Note that the Condominium Property Act provides some assistance if a board member can't physically attend a meeting. Board members may participate in and act at any meeting of the board of managers in person, by telephonic means, or by use of any acceptable technological means whereby all people participating in the meeting can communicate with each other. Participation in these alternatives to being physically present at the meeting constitutes attendance and presence in person at the meeting.

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If this does not help, and if a particular board member's schedule routinely keeps him or her from board meetings, that board member should strongly consider resigning. That is, since board business takes place at board meetings, a board member who is routinely absent is arguably in breach of his or her fiduciary duty to the owners and to the association.

Q. A special meeting of the owners of our condominium was called to fill a vacancy on the board. The board issued a notice of meeting. No proxy was distributed with the notice of meeting. The board has stated that no proxies would be allowed for this meeting. Was the board required to issue proxies, and can the board bar the use of proxies to fill a vacancy?

A. The board is not required to distribute proxies. Under the Condominium Property Act, in general, though, a unit owner may vote by proxy executed in writing by the unit owner or by his duly authorized attorney in fact. So, an owner could generally prepare his or her own proxy. That said, proxies may be prohibited if the board has properly and timely adopted a rule that provides for mail-in balloting or electronic voting, in lieu of proxies.

• 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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