Ownership in common elements is divided one way only

Q. As is typical, the units in our condominium have different percentages of ownership in the common elements, depending on the value of the units. That "value" was based on the initial sales price of the units sold by the developer. This "value" is not related to the size of the units (which are all pretty much the same size). Rather, the "value" is based on the location of the units; units on higher floors were more expensive than identical units on lower floors.

As a result, many expenses of the association would be more fairly allocated if ownership were equal for all units.

Is it possible for a condominium declaration to have two sets of percentages to divide ownership in common elements? That is, can the declaration have one percentage of ownership for purposes of allocating association expenses, and another percentage of ownership that will be used by the county to determine assessed valuation for purposes of real estate taxes?

A. There can only be one set of percentages of ownership of the units in the declaration of condominium.

Section 4(e) of the Condominium Act provides that the "declaration shall set forth the following particulars … The percentage of ownership interest in the common elements allocated to each unit. Such percentages shall be computed by taking as a basis the value of each unit in relation to the value of the property as a whole, and having once been determined and set forth as herein provided, such percentages shall remain constant unless otherwise provided in this Act or thereafter changed by agreement of all unit owners."

The association uses the percentage of ownership set forth in the recorded declaration of condominium to determine each unit's assessments. Pursuant to Section 9(a) of the Condominium Property Act, "it shall be the duty of each unit owner including the developer to pay his proportionate share of the common expenses commencing with the first conveyance. The proportionate share shall be in the same ratio as his percentage of ownership in the common elements set forth in the declaration."

The county assessor uses the percentage of ownership set forth in the recorded declaration of condominium to determine assessed valuation of the individual units. Pursuant to Section 10(a) of the Condominium Property Act, "Real property taxes, special assessments, and any other special taxes or charges of the state of Illinois or of any political subdivision thereof, or other lawful taxing or assessing body, which are authorized by law to be assessed against and levied upon real property shall be assessed against and levied upon each unit and the owner's corresponding percentage of ownership in the common elements as a tract, and not upon the property as a whole."

More simply, under the Condominium Property Act, a condominium declaration has one set of percentages of ownership that is used by the association to allocate assessments and for the county to determine assessed valuation for purposes of real estate taxes.

Q. The management company assigned one of its employees, who is a resident of our association, to manage our association. Can the property manager for our association also be a homeowner in the association? Wouldn't this be a conflict of interest?

A. The property manager assigned to the association by the management company can be an owner in the association. This is not a conflict of interest. Rather, it is a business decision of the board of directors as to whether it wants to have a property manager who is also an owner. This is not a common situation, but it does arise. Many would contend this situation gives rise to a higher level of service to the association.

• 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.