More questions arise on marijuana issues
Q. Given the new Illinois law that will legalize the recreational use of marijuana, can the board of our condominium prohibit smoking in the individual units by way of a rule adopted by the board?
A. I recently wrote about changes in the Illinois law allowing for the recreational and medical use of marijuana. As I wrote before, in order to ban the smoking of cannabis within an individual unit, the association's declaration of condominium will have to be amended, with the requisite owner approval. The board could not ban smoking of cannabis in the units by way of a rule.
Note also that the condominium declaration and rules and regulations cannot otherwise restrict the lawful consumption of cannabis by any method other than smoking within a unit or the limited common elements. However, an association may restrict any form of consumption, including edibles or vaping, on the common elements.
Depending on language in an association's declaration, limited common elements would generally include balconies, terraces, decks and patios.
Q. I am relatively new on my condominium board. I recall there being something called the Palm Case that required all board discussions on issues take place in a board meeting and not by email. A friend said the Illinois legislature changed this. Our board president wants the board to discuss items among ourselves by email chains. Is that allowed?
A. The legislature did respond to some extent to the Palm case to which you refer.
Section 1-40(b)(5) of the Common Interest Community Association Act and Section 18(a)(9)(A) of the Condominium Property Act were amended, effective Jan. 1, 2017, to provide that the board may close any portion of a meeting for which notice was given, or meet separately from a board meeting: (i) to discuss probable or pending litigation; (ii) to discuss third-party contracts or information regarding appointment, employment, engagement or dismissal of an employee, independent contractor, agent or other provider of goods and services; (iii) to interview a potential employee, independent contractor, agent or other provider of goods and services; (iv) to discuss violations of the rules and regulations of the association; (v) to discuss member's or unit owner's unpaid share of common expenses; or (vi) to consult with the association's legal counsel.
These sections now permit the board to meet separately from a board meeting to discuss these limited matters, in addition to discussing these items in a "closed" portion (also known as "executive session") of an actual board meeting.
This change permits limited use of workshops, held without notice and without owners in attendance, to discuss issues that can also be discussed in "executive session" of a board meeting. This is a limited legislative response to the Palm decision.
To answer your question, a board cannot generally engage in discussions by email, as those discussions need to take place in board meetings. However, a strong argument can be made that board members can engage in email discussions on any of the issues that can be discussed outside a board meeting or in an executive session.
Do understand, though, that one of the benefits of being able to meet in "closed session," either as part of a board meeting or other gathering of the board that is now permitted, is to avoid creating a record of the discussion. Emailing creates a record of that discussion that might be discoverable in litigation.
• 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.