Rules violation hearings not a court of law

Q. Your recent article quotes the term "due process" regarding hearings for violations and fines. I would like to know why boards are not required to hold these hearings with a swearing in, a court reporter and hearing officer to attend. Without this formal requirement or process both the owner or the complainer may tell untruths to benefit themselves. Thus, this hearing causes risks for the complainer by identifying them and possible external retaliation or harm, but no risk to the owner for lying without a perjury penalty. If this hearing is designed under this "due process guideline," then why isn't the whole hearing process officially recorded in the same legal way?

A. Both the Illinois Condominium Property Act and the Illinois Common Interest Community Act grant the board the power to levy fines for a violation of the declaration, bylaws, and rules and regulations of the association. The fine can be levied after notice and an opportunity to be heard; this is what I refer to as "due process."

When I refer to "due process" in the context of these matters, I am referring to the statutory requirement that notice and an opportunity to be heard must occur in connection with the levying of a fine by the board. The hearings must certainly be "fair," and the Illinois appellate court has recently described documents and information an accused owner is entitled to (upon request) in connection with such hearings.

However, I am not referring to the due process clause in either the U.S. Constitution or the Illinois Constitution, and that is why I put the phrase "due process" in quotes. In general, these rules violation hearings are relatively informal proceedings. They are not formal legal proceedings conducted in a court of law. Swearing in of witnesses, court reporters, and a (third party) hearing officer, seems like "overkill."

Q. The declaration for our common interest community association says that an amendment to the declaration must be signed by two-thirds of the owners. It also states that the signatures must be "acknowledged" before a notary. The attorney who prepared the amendment has advised the board that the signatures may not have to be acknowledged. That would certainly make it easier to obtain owner approval. But is that true?

A. Both the Illinois Condominium Property Act and the Illinois Common Interest Community Association Act address this in relatively recent changes to these statutes. Subject to other provisions of law, these statutes now provide that no action required or permitted by any association/community instrument, or any provision of those statutes, need be acknowledged before a notary public, if the identity and signature of the signatory can otherwise be authenticated to the satisfaction of the board of directors.

As such, if the identity and signature of the signatory to the amendment can otherwise be authenticated to the satisfaction of the board of directors, the signatures of the owners approving the amendment would not have to be "acknowledged" before a notary.

Q. An amendment to the declaration for our association must be signed by two-thirds of the owners. The board of our association presented an amendment to the owners for approval. The signature page only provides an opportunity to approve the amendment. It does not include an option of voting against the amendment. Is this proper?

A. The amendment procedure you have described does not involve a "vote" on the amendment. Owners would give their approval by signing the amendment. If an owner does not approve of the amendment, they simply would not sign the amendment.

The governing documents for some associations require the affirmative approval of some percentage of the owners, at a meeting of the owners. In that situation, there is a "vote" and the ballot would include an opportunity for the owner to "vote for" or to "vote against" the proposed amendment. That's a different procedure than one that requires an amendment to be signed by some specified percentage of the owners.

• 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.