Cluttered deck can lead to board action

Q. One of the owners in our association uses the deck of their unit to store personal property, for which they don't have enough room in the unit. The deck is packed, and it looks more like a storage unit than a deck. The declaration and the rules prohibit this use of the decks. Can the association remove this personal property from the cluttered deck after discussions with the homeowner and notification?

A. A provision in a declaration that permits an association to employ "self-help" to address a violation of this sort is not uncommon. These provisions frequently require prior notice to the owner before utilizing "self-help," and some require providing the owner with an opportunity for a hearing. That said, "self-help" in these situations can give rise to claims of damage and a suit against the association for damages by an owner. "Self-help" should not be employed if there is a risk of a confrontation with the owner. Rather, the association may have to file a suit against such owner to obtain an order requiring the owner to comply with the rules on this issue, and to remove the clutter.

Q. The board of our condominium received a petition of the owners to reject a special assessment. It is signed by the owners of 20 percent of the units by number of units. However, if the percentage of ownership in the common elements for each of those units is taken into consideration, the petition was signed by less than 20 percent of the unit owners.

A. This issue is governed by Section 18(a)(8) of the Illinois Condominium Property Act. The petition to which you refer needs to be signed by unit owners with at least 20 percent of the votes of the association. Voting is based on percentage of ownership. Therefore, the petition must be signed by unit owners with at least 20 percent of the total percentage of ownership in the common elements.

If such a petition is delivered to the board within 21 days of the board action to levy the special assessment, the board must call a meeting of the unit owners within 30 days of the date of delivery of the petition to consider the special assessment. Unless a majority of the total votes of all of the unit owners in the association are cast at the meeting to reject the budget or separate assessment, it is ratified.

Note that a special assessment may only be subject to a unit owner petition if a special assessment adopted by the board would result in the sum of all regular and special assessments payable in the current fiscal year exceeding 115 percent of the sum of all regular and separate assessments payable during the preceding fiscal year.

Even then, there are certain special assessments that are not subject to a unit owner petition and vote. Special assessments for expenditures relating to emergencies or mandated by law may be adopted by the board of managers without being subject to unit owner petition and vote. As used in the Act, "emergency" means an immediate danger to the structural integrity of the common elements or to the life, health, safety or property of the unit owners,

Q. The declaration of condominium for our association states that the board of directors is composed of five people. The bylaws, attached as an exhibit to the declaration, states that the board is to be composed of seven people. Which controls?

A. This is resolved by Section 4.1(b) of the Illinois Condominium Property Act. That section provides that "in the event of a conflict between the provisions of the declaration and the bylaws or other condominium instruments, the declaration prevails except to the extent the declaration is inconsistent with this Act."

Because the Act does not mandate the number of board members, the declaration controls over the bylaws and the association here is to be governed by five board members.

This error can arguably be corrected by the board through an amendment to the bylaws, without owner approval, pursuant to Section 27(b) of the Act.

• 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.