Owner can invite neighbors to meet board candidates

Q: Can a unit owner in an association host a coffee to introduce select candidates for the board to the owners, or must all candidates be invited to attend?

A: An individual owner can host a coffee to introduce one or more candidate for the board to owners. All candidates need not be invited to attend. That said, if such a gathering were hosted by the board or association, it would have to include all of the known candidates for the board.

Q: The president of our homeowner's association does not vote on matters that come before the board, except in the case of a tie vote. Several owners have questioned the board about this practice. No one can really say why it has been done this way, except to say that it's always been done this sway. Is our procedure appropriate?

A: This issue comes up fairly frequently. The board president, like every other member of the board, does have a vote on every issue, and should exercise the right to vote. Unless there is a legitimate reason for any board member to "abstain" from voting on a particular issue, all board members should vote.

Failing or refusing to vote, in the absence of a legitimate basis to abstain, is arguably a breach of a board member's fiduciary duty.

Q: Over the years, our condominium association has attempted to amend our declaration of condominium to prohibit leasing. The amendment receives the necessary owner approval; however, we are unable to get the written approval of the requisite number of first mortgagees required by the declaration. Typically, the first mortgage holders don't even respond. Do you have any suggestion?

A: The Illinois legislature provided a path forward for your association, and countess similarly situated condominium associations, with a revision to Section 27(a)(ii) of the Condominium Property Act.

If the condominium declaration or bylaws require approval of any mortgagee or lienholder of record and the mortgagee or lienholder of record receives a request to approve or consent to the amendment to the declaration or bylaws, the mortgagee or lienholder of record is deemed to have approved or consented to the request unless the mortgagee or lienholder of record delivers a negative response to the requesting party within 60 days after the mailing of the request.

Note that a request to approve or consent to an amendment to the condominium instruments that is required to be sent to a mortgagee or lienholder of record must be sent by certified mail.

Section 1-20(e) of the Illinois Common Interest Community Association Act includes the same provision.

As a result, a mortgagee's consent to an amendment to the declaration and by-laws in a condominium or common interest community association will be deemed to have been provided by implication if the mortgagee does not deliver a written objection. This has permitted many associations to successfully amend governing documents that otherwise failed for lack of mortgagee approval.

Q: I received a "census form" from the new management company for our condominium association. It includes a "check off" that essentially states that the owner agrees to delivery of notices by email, rather than by U.S. mail as required by our declaration. Is that alone legally sufficient to permit email delivery of notices?

A: In a condominium, the board would have to adopt a rule permitting electronic delivery of notice and other communications, and to conduct business by acceptable technological means. Once such a rule is adopted, each owner would have to consent to receive electronic delivery of notice, and to conduct business by acceptable technological means. If an owner does not consent to receive electronic delivery of notices, the board would have to conduct business with that owner without the use of "technology" (e.g., by mail).

There would be an issue with the propriety of the process to permit delivery of notice by email, if the board "skipped" the step of adopting a rule.

• 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.