Board can't reject member for missing meetings

Q. One of the board members of our association misses most of our board meetings. Can the board declare the seat vacant and appoint another owner to fill the vacancy?

A. Unless the association's declaration specifically states that a board member is deemed to have resigned if they have missed a certain number of meetings, the board cannot simply declare the seat vacant. However, routinely missing board meetings may be a breach of fiduciary duty. The board should review the association's governing documents to determine what is required to remove the board member, and consider implementing those procedures. However, an absent board member is nonetheless exposed to liability for decisions of a board even if the board member did not attend the meetings where the decisions at issue were made. A board member who is routinely unable to attend board meetings would probably serve both themselves and the association well to resign.

Q. Our condominium association provides a proxy to all owners in connection with the annual meeting to elect board members. Many owners fill in the name of the board president in the proxy as the proxy holder. These proxies give the proxy holder the discretion to cast votes as they choose, under certain circumstances. Does the board president have to make the decision at a board meeting as to how he will vote in these circumstances?

A. If a proxy names a single board member as the proxy holder and gives the proxy holder discretion to decide how to vote, the board member does not need to make the decision as to how he/she will vote publicly during a board meeting.

That is different from a proxy that names the "board" as the proxy holder. In that case, when the proxy gives the "board" the discretion to decide how to vote, the decision of the board as to how to vote needs to be made at an open board meeting.

Q. Almost 20 years ago, several single-story units in our condominium complex were expanded to form two-story units. The association essentially sold unfinished common elements to these owners.

These expanded units sell for six figures more than any other units in the complex and have the same percentage of ownership as when they were single-story units. As a result, these expanded units do not pay an appropriate share of the common expenses of the association or of real estate taxes. The board claims nothing can be done because a vote to change the percentages would have to be unanimous by all owners, and of course the two-story unit owners won't vote to increase their percentage.

A. Initially, the conversion of the common elements to unit owners would have required the consent of all of the owners in the association, and a significant amendment to the declaration and plat of survey. The amendment would have (if properly done) also reallocated the percentages of ownership.

This would typically require unanimous approval of all owners to correct all of this now. However, there is a procedure available under the Illinois Condominium Property Act to address this error.

The Condominium Property Act provides that the circuit court in the county in which the condominium is located has jurisdiction to hear a petition of one or more of the unit owners or of the association, to correct the error or omission. The case may be a class action.

The court may require that one or more methods of correcting the error or omission be submitted to the unit owners to determine the most acceptable correction. All unit owners in the association must be joined as parties to the action. However, service of process on owners may be by publication (which will keep costs down), but the plaintiff must furnish all unit owners not personally served with process with copies of the petition and final judgment of the court by certified mail, return receipt requested, at their last known address. This is an incredibly complicated situation and procedure. The board of managers needs to consult with counsel post haste.

• 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.