An owner's spouse cannot be a board member

Posted1/30/2018 7:00 AM

Q. I am married; however, the deed to my condominium unit in Illinois is in my name only. The declaration for our association says that a board member can be an owner or a spouse of an owner. My wife submitted a candidate form for the upcoming election to the board. Management told her told her that she is not eligible to run for the board. Can my spouse, who is not an owner, run for the board?

A. Your spouse may not run for, or serve on, the board, despite the language in the declaration to the contrary. The Illinois Condominium Property Act is clear that board members are elected from among the unit owners. Your spouse is not a unit owner. Action taken by a board comprised of ineligible members may be invalid, and an ineligible board member might not be covered against claims under the association's director's and officer's liability insurance.

It may be too late for the current election, but you could consider conveying an ownership interest in your unit to your spouse.

As an aside, many associations do not have accurate records regarding ownership of units. It would be prudent for associations to have their counsel obtain an owner search through a title company to confirm that a candidate is an owner. They are relatively inexpensive.

Many associations incorrectly use county taxpayer information to "confirm" ownership. However, that is not necessarily the same and is not a reliable source of owner information.

Q. A unit owner in our association places correspondence to the other unit owners directly into the individual unit owner mailboxes at the association; that is, he does not "mail" them and the correspondence does not include any postage. Is this permitted?

A. Technically, even though part of the common elements, the residential mailboxes are owned and regulated by the U.S. Postal Service.

The U.S. Postal Service Domestic Mail Manual states that "no part of a mail receptacle may be used to deliver any matter not bearing postage, including items of matter placed upon, supported by, attached to, hung from, or inserted into a mail receptacle." In other words, the mailbox may not be used for anything other than for pieces of mail with postage attached.

The typical declaration provides that no unit owner shall permit anything to be done in the common elements which would be in violation of any law." A unit owner's use of the mailboxes in violation of the law would permit the board to levy a fine as a violation of such a provision in the declaration.

Many associations do a similar mailbox drop to the individual unit owner mailboxes. So do note that the postal restriction on the use of the mailboxes would apply to both the owners and the association. That is another reason why associations should take necessary steps to permit notices to be issued to owners by email.

Q. Our condominium association is considering borrowing money to pay for common element maintenance, repair, and replacement projects. The association doesn't own any real estate to mortgage. What sort of collateral will the bank request?

A. Associations have something far better than real estate to pledge as collateral; associations have cash and cash-flow. The board of your condominium, without unit owner approval, can pledge the right of the association to future income from assessments or other sources. This is permitted by the Illinois Condominium Property Act. The bank's right to receive the collateral would only be triggered if the association defaults on the loan. Otherwise, owners pay their assessments to the association as always during the term of the loan.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at 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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