Only board can maintain common elements

Q. I live in a six-unit condominium building in a complex of about 40 buildings. The lawn in front of our building seems to be the most unsightly in the entire complex. The owners in the building have been asking the board to repair the landscaping for years. The board and management have refused, citing various reasons with which we do not agree. Can we, as homeowners, hire a private landscaper to grade and lay sod, divide the cost between the owners in our building, and then deduct those costs from our monthly maintenance fees?

A. The board of managers of the association is responsible for the maintenance, repair and replacement of the common elements. Owners may not perform such work without the prior approval of the board. Further, owners may not deduct the amount of a claim against the board from their assessments. The owner's duty to pay assessments is independent of the association's duty to maintain the common elements.

The owner's remedy would be to file suit against the board alleging a breach of its fiduciary duty, seeking a court order that the association maintain the common elements in question.

An easier and far less expensive solution might be to elect members of the community to the board who are sympathetic to the maintenance issues you and your fellow owners have raised.

Q. Our association took possession of an owner's unit after an eviction for nonpayment of assessments. The unit's delinquency has been paid off, and the association continues to lease out the unit because the owner has not come forward, and we cannot locate the owner. As a result, the association has collected more money in rent than is due to the association. Who is entitled to the surplus that is being generated from leasing this unit?

A. The association should use the surplus to pay assessments as they become due for the unit, and to pay for maintenance, repairs and replacements within the unit as may be required of the association under the lease between the association and the tenant. However, any remaining surplus belongs to the unit owner against whom the association has the judgment.

The association should either keep the surplus in a separate account or keep detailed records showing the balance of the surplus. If the owner does not return to claim the surplus, the surplus will eventually have to be turned over to the state after expiration of the statutory period for unclaimed property.

Q. A unit in our association was sold at a judicial sale, following a mortgage foreclosure sale. The judicial sale resulted in a surplus, over and above what the owner owed to the foreclosing lender. The owner also owes several thousands of dollars to the association. Is the association entitled to claim the surplus?

A. If the association participated in the foreclosure by filing pleadings asserting its claim for assessment, the association may have a right to the surplus, or at least so much of it as would satisfy the association's claim. This assumes there are no other claimants whose lien rights are superior to the association's.

If the association has participated in the foreclosure, the bank's judgment of foreclosure should recite the association's claim and describe the order in which claimants would be paid if there is a surplus.

If the association did not participate in the foreclosure, it might still be able to make a claim to the surplus. However, this would require filing the appropriate motions in the foreclosure.

Since the mortgage foreclosure crisis, most associations have not been participating in the lender's mortgage foreclosures. This is because there hasn't been sufficient equity in units. We are seeing a trend of increasing equity in foreclosed units, so associations that are owed sums from the owner need to consider whether to participate in the lender's foreclosure.

• 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.