Condo meetings generally open to owners, not public

Q. Are Illinois condominium associations subject to the Illinois Open Meetings Act?

A. The Illinois Open Meetings Act is not applicable to condominium associations, and is only applicable to meetings of "public bodies" like states, counties, school districts, just to name a few. Meetings of boards of condominium associations, and the rights of owners to attend, are generally governed by Sections 18(a)(9)(A through E) of the Illinois Condominium Property Act. Similarly, meetings of boards of common interest community associations, and the rights of owners to attend, are generally governed by Section 1-40(b)(5) of the Illinois Common Interest Community Association Act.

Q. The board of our association levied a special assessment, payable in monthly installments. The special assessment was levied to repay a bank loan. The treasurer of the board contends that there is an error in the special assessment calculation for the individual units. On his own, the treasurer issued an email to all of the owners stating that repayment of the special assessment is being suspended until further notice. Did the treasurer have the authority to do this?

A. Just as the special assessment required board approval at a board meeting, any change to the special assessment requires approval by the board at a board meeting. So, no, the treasurer did not have authority on his own to suspend the payment of the special assessment. Further, suspending the payment may be a breach of the loan documents, placing the association in default. It can also create practical difficulties with respect to the disclosures the association must make in connection with sales of units.

The association would probably be better served by promptly determining if the special assessment calculation for the individual units was correct, and make the appropriate adjustments as may be necessary.

Q. I recently purchased a condominium unit at a judicial sale. The management company for the association insisted that I was responsible for the past due assessments from the prior owner, along with late fees, attorney fees and other management fees, from the past six months. Reluctantly, I paid the amount claimed.

However, I have learned that the association did not file any action with the circuit court, or take any action, to collect assessments from the foreclosed owner. Was I responsible for any assessments under the "six-month rule?"

A. Section 9(g)(4) of the Illinois Condominium Property Act does provide that the successful purchaser at the judicial sale in the prior owner's foreclosure (if a third party other than the lender) or the person who buys the unit from the lender after the judicial sale, will be responsible for up to six months of "common expenses" (that includes regular assessments, special assessments, late charges, attorney's fees, for example) that were due and remain unpaid from the foreclosed owner at the time the association initiates a collection action against the foreclosed owner. Importantly, it's not the six months prior to the judicial sale in the foreclosure, as many incorrectly understand.

However, in order to trigger the obligation under the "six month" rule, the association must have initiated a collection action against the foreclosed owner. Per case law, associations are not required to file a lawsuit against the owner who is in a foreclosure in order to be able to collect up to six months of unpaid assessments from a buyer. However, the case does suggest that at a minimum an association must take some action to enforce its lien rights, such as recording a lien against a delinquent owner's unit prior to the foreclosure sale and notifying the buyer of that lien, at minimum. If the association did not initiate such an action against the former owner in your situation, the association was not legally entitled to collect the up to six months of common expenses amount from you described in Section 9(g)(4) of the Condominium Property 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.