Association must protect deceased owner's property
Q. An owner of as unit in our association recently died. Various family members have now come to the association office and have demanded that the association give them the "emergency" key to the unit. Apparently, not trusting each other, the family members are "fighting" over who should get the key and as to who should have access to the unit. One family member is claiming to have the deceased owner's power of attorney. To whom should the association give the key?
A. This is an unfortunate situation that we see played out from time to time. Any person seeking the association's assistance in accessing the deceased owner's unit should be required to show documents that they are the executor or administrator of the estate of the deceased owner, or documents from the executor/administrator that the executor/administrator authorizes the person to take this action.
An executor is the person named in a will to gather/distribute the deceased owner's assets. An administrator is the person appointed by the probate court to perform these functions when there is no will or no executor named in the will.
If the unit is held in trust, a person should produce documents showing that they are the beneficiary of the trust that holds legal title to the unit.
A power of attorney granted by the now deceased owner would not provide any rights to any third party at this time, as a power of attorney automatically expires on the death of the owner.
Q. I understand a recent appellate court decision stated that an owner cannot be fined for verbally berating a (homeowner association) staff member, in violation of an association rule regarding these matters. Is that correct?
A. In the case of Boucher v. 111 East Chestnut Condominium Association, the Illinois Appellate Court held that unit owners have a right of freedom of speech, and the association's rules and regulations cannot impair an owner's ability to exercise such rights. The appellate court held that an owner could not be fined for exercising his first amendment right of speech when he berated and criticized the manager. Accordingly, rules and regulations that may impair an owner's right to exercise their First Amendment rights are not enforceable.
However, do note that the First Amendment does not protect all speech. Speech, whether written or oral, that is threatening in nature or causes any owner, employee, staff member, managing agent or other person to fear for their safety is not protected by the First Amendment, and an owner could be subject to a fine under an applicable rule or provision of the declaration for such threatening speech.
Q. I am a board member in a homeowners association. The association is incorporated as a not-for-profit corporation. After an argument between a board member and an owner during a board meeting, the board member stood up, shouted, "I am through; I resign," and left the meeting. A couple of days later this board member spoke with our property manager and told the manager he did not resign. Now the board members are arguing about whether this person resigned or not. Was the verbal "I resign" effective?
A. The verbal resignation was not effective. This issue is governed by and Section 108.10(g) of the Illinois Not For Profit Corporation Act. A director may resign at any time by written notice delivered to the board, or to the president or secretary. The written resignation is effective when delivered, unless the notice specifies a future effective date, and would not be effective retroactively to the date of the verbal pronouncement.
• 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.