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Association asked to pay for patio damage

Q. The patio of my unit (a limited common element) has been damaged by erosion from water that cascades over the gutters of our building. The gutters clog frequently with leaves from trees that overhang the gutters. The gutters are cleaned once a year by the association. I asked the board to repair the patio; however, the board says it will assess the cost to my unit as permitted by the declaration. Is this my responsibility?

A. If the damage to the patio is due to the association's failure to properly maintain the common element rain gutter system, you may have a good claim that the association should pay for the cost to repair the patio.

To demonstrate negligence (breach of the board's fiduciary duty), you will have to prove the board knew or should have known of the common element gutter clog, and that the board did not take timely and/or appropriate action to keep the gutters clear.

Negligence is a question of fact, based on the facts and circumstances in each case. More and more owners are claiming that the lack of a preventive maintenance program by an association is evidence of "negligence." But these are questions of fact, based on the facts and circumstances in each case.

Q. The declaration for our common interest community association requires our association to furnish members with an itemized accounting each year. Our management firm has never sent any owner (except the board) a copy of the accounting. The manager has stated this is "optional," and that the association can offer to send a copy to unit owners if they request it. To me, the wording on this doesn't seem "optional." What's correct?

A. The issue here is governed by Section 1-45(b) of the Illinois Common Interest Community Association Act. That section requires the board to make an annual itemized accounting available for review by all members. That is different from the language in Section 18(a)(7) of the Illinois Condominium Act that states the board of managers shall annually supply an itemized accounting to all unit owners.

The board of a common interest community association must have the annual accounting prepared. However, the board does not have to automatically distribute the accounting to its members. Rather, the board could advise owners that the annual accounting is available, and include information as to how owners can obtain a copy, and then provide a copy when requested. It's less clear if this same approach can be followed in a condominium.

Q. There is an owner in our association who videotapes every open meeting of our board, and he does so in a very disruptive manner. For example, he literally walks right up to the board member who is speaking and has the camera about 2 feet from the board member's face. The board members know that a unit owner in a condominium association can videotape a board meeting; however, this person is being ridiculous. Can the board impose any restrictions on this?

A. The Illinois Condominium Property Act provides that any unit owner in a condominium or master association may record the proceedings at board meetings, or portions thereof required to be open to owners, by tape, film or other means. Importantly, the act also states that the board may prescribe reasonable rules and regulations to govern the right of an owner to make such recordings.

The taping of meetings can be done in a manner that is disruptive, intimidating and can create safety issues. A board should address these issues by establishing rules that will ensure the least amount of disruption without impairing unit owner rights. It would not be unreasonable to require that video recorders be placed on a tripod, or hand held in a stationary location, a certain minimum number of feet away from the board of directors table.

• 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.

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