Associations must allow U.S. census workers access to their property

Q. The U.S. 2020 census is coming up. Does our homeowners association need to admit census workers to the property?

A. In a "nutshell," federal law provides that an association must provide the census worker access to buildings (it will be up to individual residents to open the doors of their units and answer census questions). Failure of an association to comply can result in a fine. The association can utilize whatever security measures it has in place (e.g., call resident and announce visitor), and can require the census worker to provide identification that they are a duly accredited representative of the department of commerce.

As an aside, an accurate census can help a local community receive an appropriate allocation of federal financial resources. So, while it may be an inconvenience to deal with the census worker, the potential financial upside to your community can't be dismissed.

Q. The rules for our association describe what conduct can result in a fine and the amount of the fine for such violations. When a violation is reported, the association issues a notice of violation and fine to the owner. The owner is not provided any opportunity for a hearing as to the claimed violation, and the board does not make any determination that a violation occurred, or levy the fine, at a board meeting. Is this appropriate?

A. This is absolutely not an appropriate procedure. I recently spoke at a seminar where this same issue was raised by an attendee.

Section 18.4(l) of the Illinois Condominium Property Act and Section 1-30(g) of the Illinois Common Interest Community Association Act are clear that the board can levy a fine for a violation of the declaration or rules, after providing an owner with notice of the violation and an opportunity for a hearing.

Merely issuing a notice of violation and levying a fine, without affording the owner an opportunity for a hearing, violates the "due process" required under the governing statutes. Even if the owner does not avail themselves of the opportunity for a hearing, the board should still make a finding that the violation occurred, and levy the fine, at a board meeting. That's my "take away" from various appellate court decisions.

Q. I am an owner in a small 29-unit condominium association. We have had a professional management company for four years. We simply don't have the money to afford the management company fees, and things like repairs are going by the wayside. We were told the law requires the association to be professionally managed. Is this true or do we have the choice to be self-managed?

A. Section 18(a)(5) of the Illinois Condominium Property Act provides that the board may engage the services of a manager or managing agent. Engaging professional management is not a requirement under the law. An association can be self-managed.

However, the typical declaration of condominium/covenants includes a section on the "rights of mortgagees." "First mortgagees" refers to the holders of mortgages on the individual units.

The "rights of mortgagees" language frequently requires the approval of a specified percentage of first mortgagees in order for an association to change from professional management to self-management. This approval may be deemed implied under certain circumstances, after following a specified procedure to contact first mortgagees.

The benefits that professional management typically brings to an association are significant, even if not as tangible as some repair project. Many associations look to cut or eliminate professional services of all kinds to save money. That might be "short sighted."

The board may need to consider whether the real answer is to establish a budget that more realistically reflects the needs of the association.

• 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.