Is condominium association responsible for mice, pest control?

Q. For the last three years each autumn, mice get into our first-floor condominium unit through a hole between the foundation and brick above. Each year I have had to hire an exterminator at significant expense to rid my unit of mice. Each year I report the problem to the board, and they have not fixed the hole that permits the mice to get into my unit. This just happened again, and I am thinking of demanding that the association reimburse me for the exterminator for this year. Is the association responsible for my pest control bill?

A. The association is not automatically liable for damage that results from a failure of the common elements. However, the association will be responsible for the owner's exterminator bill if the association knew, or should have known, of the common element damage that is providing mice access to the unit, and if the association failed to take timely or appropriate action to repair the damage, and if that failure caused damage to the owner.

Given that this is an issue that has been going on and reported to the association for three years, the association does have exposure to liability for your pest control bill.

Q. I live in a common interest community association of single-family homes. The board has proposed an amendment to the declaration that requires a positive vote from 75 percent of the homeowners in order to pass. The board is requiring that homeowners who vote "yes" have their signature on their ballot notarized. The president of the association says that he has been told that, if passed, all of the affirmative ballots need to be recorded with the amendment, and that the Cook County Recorder of Deeds will not accept the amendment for recording if the signatures are not notarized.

I am concerned that this added burden of having your signature notarized will prevent many homeowners from voting, and failure to vote is, of course, a de facto "no" vote. Does the Common Interest Community Association Act require notarization of ballots? Does the Cook County Recorder of Deeds require that signatures on amendments to a declaration be notarized? Does the board have discretion to require that signatures be notarized?

A. The amendment to the declaration needs to be adopted in strict accordance with the amendment procedure set forth in the association's declaration of covenants. Further, the board can't generally impose additional requirements to adopt an amendment than set forth in the declaration of covenants.

Typically, the amendment procedure will either require approval by vote of the owners at a meeting, or approval by signature of the owners (and some amendment provisions require that the signatures be "acknowledged before a notary"). The recorder of deeds will not review a document to make sure it complies with the amendment provisions of the association's declaration.

The ballots would not typically be recorded if the amendment requires approval at a meeting. Rather, the secretary of the association would sign a certification that the amendment was approved by the requisite number of owners at a meeting of the owners, and the certification would be recorded with the amendment. Moreover, the Common Interest Community Association Act does not impose a requirement that a ballot be notarized, and I don't know why the board would add that requirement.

If the amendment procedure requires owners to approve the amendment by signing the amendment, the signature pages of the owners would be attached to the amendment when recorded. And if the amendment procedure requires the signature to be "acknowledged before a notary," that would be done. That said, Section 1-85(e) of the Common Interest Community Association Act provides that "subject to other provisions of law, no action required or permitted by any community instrument or any provision of this Act need be acknowledged before a notary public if the identity and signature of the signatory can otherwise be authenticated to the satisfaction of the board of directors." So even when the declaration requires a signature on an amendment to be "acknowledged before a notary," that requirement can be avoided.

I would strongly urge the board to consult with an attorney on this, as there appears to be a lot of confusion about something that should be relatively straightforward.

• 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.