Wooden floors are not common elements

Q: The plat of survey for our condominium association provides that the perimeter walls, floors and ceilings are the boundaries of the units. Most of the units have wood floors. Are the wood floors part of the units, or the common elements?

A: This is addressed in Section 4.1(a)(2) of the Illinois Condominium Property Act. This section provides that, except to the extent otherwise provided by the declaration or other condominium instrument, to the extent that perimeter and partition walls, floors or ceilings are designated as the boundaries of the units or of any specified units, all decorating, wall and floor coverings, paneling, molding, tiles, wallpaper, paint, finished flooring and any other materials constituting any part of the finished surfaces thereof, shall be deemed a part of such units, while all other portions of such walls, floors or ceilings and all portions of perimeter doors and all portions of windows in perimeter walls shall be deemed part of the common elements.

Therefore, the wood floors are part of the individual unit.

Q: The declaration for our condominium association is silent as to what can or must be done with a year-end surplus? What is the board permitted to do with the surplus?

A: This is addressed in Section 9(c)(5) of the Illinois Condominium Property Act.

At the end of an association's fiscal year and after the association has approved any end-of-year fiscal audit, if applicable, if the fiscal year ended with a surplus of funds over actual expenses, including budgeted reserve fund contributions, then the board of managers has the authority, in its discretion, to dispose of the surplus in one or more of the following ways:

• Contribute the surplus to the association's reserve fund;

• Return the surplus to the unit owners as a credit against the remaining monthly assessments for the current fiscal year;

• Return the surplus to the unit owners in the form of a direct payment;

• Maintain the funds in the operating account, in which case the funds shall be applied as a credit when calculating the following year's annual budget.

Note that this only applies to the extent that there are not any contrary provisions in the association's declaration and bylaws.

If the fiscal year ends in a deficit, then, to the extent that there are not any contrary provisions in the association's declaration and bylaws, the board of managers has the authority, in its discretion, to address the deficit by incorporating it into the following year's annual budget.

Do note that there is a procedure for the unit owners of the association to deliver a petition objecting to the action taken by the board. If a petition is received, the board must call a meeting of the unit owners. At the meeting, the unit owners may vote to select a different option than the option selected by the board of managers. However, unless a majority of the total votes of the unit owners are cast at the meeting to reject the board's selection and select a different option, the board's decision is ratified.

Q: Do the officers of our association need to be board members?

A: Yes, the officers of a condominium or common interest community association are elected from among the members of the board. The required officers are the president, secretary and treasurer.

The president presides over the meetings of the board and of the membership. The secretary keeps the minutes of all meetings of the board and of the membership and who, in general, performs all the duties of the office of secretary. The treasurer keeps the financial records and books of account.

• 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.