Residents must request a change in common areas

Q: An elderly owner in our condominium installed a lockbox in our lobby. A key to the owner's unit is located in the lockbox. The owner wants her caregiver to use the key in the lockbox in case she is ill or unable to get to the door of her unit. The president of the association instructed the owner to remove the lockbox. Is this within her jurisdiction?

A: The typical declaration of condominium provides that no owner shall make any alteration or addition to the common elements without the prior written approval of the board. If this process was not followed, the board president was within her rights to instruct the owner to remove the lockbox from the common element lobby.

That said, the ailing owner may be entitled to a "reasonable accommodation" in connection with those restrictions. The issue is going to be governed by the Federal Fair Housing Act Amendments of 1988.

The Fair Housing Act requires an association to permit reasonable modifications of common elements by a disabled resident, if such modifications may be necessary to afford such person full enjoyment of the premises. The modification is to be made at the expense of the disabled resident, not the association. Whether or not an association must permit a disabled person to install a modification to the common elements is to be examined on a case-by-case basis.

An association can and should investigate a resident's request for a modification of the common elements. For example, is the resident disabled? Is the modification necessary to afford such person full enjoyment of the premises? These issues may or may not be obvious, depending on the disability. If not obvious, the resident's doctor can provide input.

The association should also determine if the requested modification is reasonable. Not all requested modifications are reasonable. There would appear to be a reasonable alternative here to the installation of a lockbox in the lobby, like giving the caregiver a key to the owner's unit.

Q: Section 12(a)(1) of the Condominium Property Act states that the association shall maintain property insurance "on the common elements and the units, including the limited common elements and, except as otherwise determined by the board of managers, the bare walls, floors and ceilings of the unit." Can the association amend its declaration to require owners to procure insurance on the bare walls, floors and ceilings of the unit?

A: Yes, I think it can. However, before the association does that, the board should confirm with the association's insurance agent that it can get a policy that would exclude those coverages, and that owners could get coverage that would include those coverages. Otherwise, the amendment will create an untenable situation.

Q: The board of our association approved a very significant tuckpointing project at a board meeting that took place before all the COVID-19 stay-at-home orders were imposed, and the project is to begin next week. However, because of the pandemic, the board has scheduled its next board meeting for next month. As a result, the minutes of the meeting where this project was authorized will not be approved until after the work will begin.

Can the board of our association proceed with this project before the minutes of the meeting where the action was authorized have been approved?

A: The minutes of a meeting memorialize the actions approved by the board. Minutes should be prepared and approved at a meeting as soon as practical. However, the approval of the minutes is not a condition precedent to the board proceeding with actions authorized at a board meeting. As long as the project was approved by the board at a duly held board meeting, the association may proceed with the tuckpointing project, despite the fact that minutes of the meeting where the project was authorized have not yet been approved.

• 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.