Should board ask owner to act as handyman?
Q. What pitfalls face our association if we ask a unit owner to perform certain repairs of the common elements for the association?
A. Some associations, in an effort to save money, will utilize the "talents" of owners to perform certain work for the association. When an association retains a professional contractor, the association can secure warranties for the work and proof of appropriate types of insurance. This is seldom the case when an owner performs the work. Further, the association risks a workers' compensation claim if the owner is injured performing work for the association. An association should speak with its insurance agent/broker before engaging any owner to perform common element work for the association.
Q. The bank for our condominium association has requested a certificate of incumbency from the association. What is that?
A. A certificate of incumbency is a document that identifies the current members of the association's board of directors. It may also identify when each board member was elected. The certificate will also identify the board members who have authority to deal with the bank, and may include sample signatures of those board members. The certificate is signed by the secretary of the association. Some banks have their own form of incumbency certificate, so it's best to ask before reinventing the document.
Q. Our association has a five-member board. Board members are elected for a one-year term. For a variety of reasons, there is a lot of turnover on the board, and we often have all new board members each year. The new board members spend a lot of their term getting up to speed on association matters, and then many or all are not reelected. Do you have any suggestion for maintaining continuity on the board?
A. The problem you describe can be the result of "burnout" by board members, or owner desire for "new" blood on the board. It is exacerbated by one-year board terms.
The association should consider amending the declaration to provide for staggered board terms. This amendment would also increase the term of a board member to two years. The staggering would be accomplished by providing for the election of five board members at the first meeting after recording of the amendment. Three candidates would be elected to two-year terms, and two candidates would be elected for one-year terms, at the first meeting after recording of the amendment.
Successors to these board members would serve two-year terms (rather than the existing one-year term). This would result in the election of two or three board members in alternating years. The existing one-year terms would not perpetuate the staggered terms. This should create "continuity" and reduce board turnover.
Q. A guardian was appointed by the circuit court for an owner in our association. There is a substantial credit balance on the owner's account. The guardian has requested that a refund check be issued. Is the association required to abide by the guardian's request, or must the refund request come from the owner?
A. A guardian is appointed by the court because a person lacks sufficient understanding or capacity to make or communicate responsible decisions and/or because the person is unable to manage their estate or financial affairs. The guardian would have whatever powers and duties are set forth in the court order appointing the person as guardian. A copy of that order should be provided by to the board. However, requesting a refund of this nature would typically be within the power of the guardian, and the request would not have to come from the owner.
• 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.