Can board close walking path through winter?
Q: We live in a townhouse condominium in the suburbs. There is a walking path around the development. It is a significant amenity that is used by most of the residents. There are many dog owners and walkers that use that path several times a day, all year-round. The association does not remove snow from the path, citing liability issues. Now there are discussions that the association will close the path entirely in winter months. Is this prudent?
A: I understand the board's position about snow removal with respect to liability for injuries suffered in a slip and fall on snow. If the association's governing documents provide that the association is responsible to maintain, repair and replace the walking path, it could be argued that it is a breach of duty for the association not to plow it. In such a circumstance, failure to plow could arguably expose the association to legal action by an owner who is not able to use the path year-round.
This is a situation where the risk of loss might be managed through the procurement of appropriate types and amounts of insurance, together with an appropriate snow removal program. The board should speak to its insurance agent to develop an approach that will protect the association from loss while permitting the owners to use an amenity that could be available year-round.
Q: I read your column a while back that states a condominium association can amend their declaration of condominium. What percentage of votes of the owners does it take to pass an amendment to the declaration?
A: Section 27(a) of the Illinois Condominium Property Act is one of the provisions that governs amendments to an association's declaration. The condominium instruments are amended upon the affirmative vote of two-thirds of those voting or upon the majority specified by the condominium instruments, provided that in no event can the condominium instruments require more than a three-quarters vote of all unit owners. You will need to review the amendment provisions of the association's declaration to know what percentage of the owners is needed to amend the declaration.
Do note, however, that an amendment to the declaration to reallocate the percentage of ownership in the common elements would generally require approval of 100% of the owners.
Q: The board of our condominium can get a great (below market) price for cable television and internet service. Each owner now contracts for this service, if they choose to have it at all, on their own. Not every owner gets cable/internet service. Can the board require all owners to pay for a bulk cable/internet plan with a fee that is included in the monthly assessment?
A: This issue is governed by Section 14.3 of the Illinois Condominium Property Act. That section provides that the board is authorized to obtain, if available and determined by the board to be in the best interests of the association, cable television or bulk high-speed internet service for all of the units of the condominium on a bulk identical service and equal cost per unit basis. The board can assess and recover the expense as a common expense. Importantly, the board can assess each and every unit on the same equal cost per unit basis, rather than based on percentage of ownership.
Q: The 2019 budget for our condominium association includes a line item to replace the existing 20-year-old light fixtures with identical fixtures. However, it turns out the actual cost to replace the light fixtures is going to be 35% higher than the amount budgeted. Does the board have to obtain owner approval for this increase in the expense?
A: The board does not have to obtain an owner vote on this issue. Budgets are planning tools and a very useful guide for the board. In reality, actual expenses can be higher or lower than budgeted for a particular budgeted category. In general, a board can spend more than is budgeted for a particular item. However, to keep from operating at a deficit, and the potential need to levy a special assessment to cover the shortfall, the board may likely have to spend less than budgeted in another budget category.
• 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.