Only titled owners can vote

Q. I read your Jan. 27 column with interest regarding the ineligibility of a nonowner, whose spouse is a unit owner, from serving on the board of a condominium association. Your answer is very logical and concise. However, you stopped short of answering a question that immediately popped into my head. Does this carry over to voting rights eligibility as well? In other words, if a deed lists only one spouse as the owner, is the other spouse ineligible to vote?

A. One must be a unit owner to be eligible to vote in an association. The nontitle-holding spouse of an owner is not an owner, and would not be eligible to vote. That said, if owners are permitted to vote by proxy, then the title-holding spouse could generally give his or her nontitle-holding spouse a proxy to vote on behalf of the title-holding spouse.

As I stated in the earlier column, many associations do not have accurate records regarding ownership of units. As a result, an association may be under the mistaken belief that a spouse of an owner is also one of the owners of a unit. Having good records as to the identity of all owners is essential.

Q. Our board has been calculating assessments incorrectly for years. As a result, some owners with higher percentage ownership are paying less than owners with lower percentage of ownership. What recourse do the owners have to get funds back from previous years of overpayment and can the board request back payment from owners who underpaid?

A. The board should immediately start to allocate and collect assessments going forward based on each unit's percentage of ownership in the common elements. Owners that voluntarily paid an assessment that later proved to be calculated incorrectly may not generally seek a refund from the association. The voluntary payment doctrine provides that a person that voluntarily makes a payment of an incorrect amount may not generally seek a refund, unless the payment was made "under protest." The protest had to have been made on the check or in a separate writing to the association that accompanies the payment.

Q. My condominium unit came with a dedicated parking easement in the form of a detached single-car garage, which is described as a common element in the declaration of condominium. The association has always maintained the exterior of the garages and even pays the electric bill for each detached garage. Recently, the association enacted a "policy change" requiring unit owners to be personally responsible for the maintenance and repair of the garage doors. It is my understanding that because the detached garages are common elements, repairs should be paid for by the association, and that, in accordance with the Illinois Condominium Property Act, the association cannot mandate that unit owners be responsible for paying for the required repairs out of their pocket. Please advise if this is correct.

A. Section 2(s) of the Illinois Condominium Property Act provides that a portion of the common elements can be designated as limited common elements, and that the declaration can reserve the use of the limited common elements to a certain unit or units.

Section 9(e) of the act further provides that the condominium instruments may provide for the assessment, in connection with expenditures for the limited common elements, of only those units to which the limited common elements are assigned.

It is common for a condominium declaration to characterize a parking space or garage as a limited common element of a unit. However, the condominium declaration would have to expressly permit the association to charge the owner the cost of maintenance, repair or replacement of the garage door. In the absence of such language, the cost of such maintenance, repair or replacement would be a common expense.

A close look at your declaration is in order to determine if the garages are limited common elements, and if the required chargeback language is included.

• 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.