Residents' generator may disturb neighbors

 
Posted7/18/2020 7:00 AM

Q: A resident in our detached single-family home homeowners' association submitted a request to install a natural gas-powered generator on his lot. It would supply power to his home in the event of a power failure. The board is concerned about the loud noise it would generate during weekly, 10-minute or so automatic testing of the generator. Our declaration of covenants includes a provision that prohibits an owner from engaging in any conduct that unreasonably interferes with the quiet enjoyment and use of another lot or common area, or conduct that creates a nuisance. Is this language enough to deny the owner's request?

A: This issue does come up from time to time in associations. However, there is no Illinois case law directly on this point.

                                                                                                                                                                                                                       
 

The issue raised here is whether the generator, when it is in actual use, creates noise that rises to the level of interfering with the quiet enjoyment of another lot or the common area, or creates a nuisance. If the noise created by a power generator is continuous and loud, it could absolutely violate the covenant in the association's declaration.

However, a power generator does not run continuously. Therefore, the occasional nature of the noise emitted during the weekly 10-minute testing, or even the noise emitted during an occasional power failure, might not be enough to support a denial of the request for a generator based on the covenant in question here.

The board could require that the weekly test take place during the daytime, so as to reduce the impact on other residents. And the board could require some sort of screening of the generator to minimize an aesthetic impact

Q: What is the proper procedure a board member should follow, other than voting against a matter, when they feel a board action is not proper?

A: This is addressed in Section 108.65(b) of the Illinois General Not for Profit Corporation Act. It provides that a director of a corporation who is present at a meeting of its board of directors at which action on any corporate matter is taken is conclusively presumed to have assented to the action taken unless he or she takes specific action. The board member's dissent to board action must be entered in the minutes of the meeting. Alternatively, the board member must file his or her written dissent to such action with the person acting as the secretary of the meeting before the adjournment of the meeting, or must forward such dissent or abstention by registered or certified mail to the secretary of the corporation immediately after the adjournment of the meeting.

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Note further that such right to dissent or abstain does not apply to a director who voted in favor of such action. A dissent is typically issued by a board member who believes that proposed corporate action is illegal, in order to avoid personal liability for board action.

Q: The board of our condominium has been making "emergency" decisions to respond to issues raised by the COVID-19 pandemic. We have been advised that the Condominium Property Act permits a board to ratify an "emergency" decision, and that the term "emergency" is defined. However, by what procedure should the board be making decisions in an "emergency?"

A: Section 18(a)(21) of the Illinois Condominium Property Act permits the board of a condominium association to ratify "emergency" decisions. That section does not describe how the actual decision is made in an "emergency." Presumably, the decision in an "emergency" could be made by the board at a meeting called on less than 48 hours notice or without notice, or by email between the board members, or by telephone polling of board members. The board would then have to follow the ratification procedure described in Section 18(a)(21) of the act.

• 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.

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