Board shouldn't extend deadline for one candidate

Q. The board of my association issued a request for candidates for our annual meeting to elect directors to the board. I submitted a timely candidate form for the association's annual meeting. I meet the requirements for election to the board. However, the board refuses to send my candidate form to the owners with those of other candidates, and my name will not be printed on the association's ballot and proxy for the election. No explanation has been given to me. What's my remedy?

A. A suit could be filed before the election to enjoin the association from proceeding with the election unless and until it distributes your candidate form and includes your name on the association's ballot and proxy for the election. Alternatively, you could embark on a write-in candidate campaign, and distribute election materials to the other owners, and solicit proxies from other owners. It's difficult, but not impossible, to be elected as a write-in candidate.

The much more frequent issue I see concerns a candidate form that is received after the submittal deadline. In such a situation, the person who submits a candidate form after the deadline should generally not be included on the preprinted ballot and proxy, and their material should not be distributed by the board. That is, unless the deadline is extended for all owners, and they are so notified. Without taking that step, the fairness of the election process could be called into question. And while an election does not have to be "perfect," it does need to be "fair."

Q. Owners in our association are permitted to vote to elect board members at the annual meeting of the association either in person at the meetings or by proxy given to another person. Twenty percent of the owners constitute a quorum; however, very few owners actually attend the annual meeting and most participate via a proxy. We would not be able to establish a quorum with just the owners that show up at the meeting. Are the proxies counted toward a quorum?

A. Yes. The quorum for an owners' meeting is established by taking into consideration the owners present at the meeting either in person or by proxy. A mail-in ballot could also be counted toward a quorum, if a mail in ballot procedure has been established by the association's rules or declaration.

Q. The last board of our association was very lax about assessment payments, and we have a significant number of owners who have not paid their assessments in months. What can our association do if an owner does not pay their assessments?

A. There are a variety of remedies available to the association. The association can levy a reasonable late charge in the month the assessment is not paid. If the delinquency continues for 60 days, the association should pursue a forcible entry and detainer (eviction) action against the owner. This permits the association to evict the owner from their unit, and allows the association to lease the unit to a third party, and the rent is used to pay the arrearage. Once the account is current, possession of the unit can be returned to the owner. This is a very effective remedy, and is only available to associations in Illinois.

The decision of the board to pursue a collection must be made at a board meeting. However, the board could also adopt a resolution, at a board meeting, that describes the circumstances under which a collection action will be pursued against an owner, and that delegates the authority to a board member or to management to implement the policy, without having to meet and approve each matter individually.

• 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.