Association may enforce traffic laws on private streets and impose fines

Q: The streets in our detached single family home common interest community association are private. Some of the younger drivers, and even some older ones, drive at speeds that rival the interstate, despite the posted speed limit of 10 mph. Can the association issue speeding tickets to these offenders?

A: The Illinois Supreme Court has confirmed that an association can enforce its traffic regulations on its private streets. In the case in question, the court stated that the association is permitted to stop and temporarily detain members when there is probable cause or reasonable ground to believe a violation has been committed. That is probably more aggressive than what most associations have in mind.

However, an association could certainly adopt a rule to establish speed limits for its private roads, and levy a fine against persons who violate the speed limit rule, after providing notice of the violation and an opportunity for a hearing. Modern technology would permit the association to set up, for example, a "speed camera" to catch the scofflaws. Note too that an association can enter into an agreement with local law enforcement to enforce traffic laws on the association's private streets.

Q: I live in a common interest community association in Illinois. Our declaration of covenants was recorded before there was a Common Interest Community Association Act. We are still under developer control and under the declaration, the developer does not have to turn over control of the association to the owners until the end of 2024. Even though our declaration was recorded before the Act became effective, should the developer be required to comply with Section 1-50 of the Act?

A: The Illinois Common Interest Community Association Act was effective July 29, 2010. Section 1-50(b) of the Act governs turnover, and provides that "(t)he election of the initial board, whose declaration is recorded on or after the effective date of this Act, shall be held not later than 60 days after the conveyance by the developer of 75% of the units, or 3 years after the recording of the declaration, whichever is earlier." Since your association's declaration was recorded before, July 29, 2010, the turnover language of Section 1-50(b) of the Act is not applicable.

Q: Our condominium association adopted rules that permit owners to vote by mail in ballot in elections to the board, or in person at the annual meeting. However, the rules also provide that owners would not be able to vote by proxy. I am on the board and owe my long tenure on the board to my ability to convince owners to give me their proxy and to permit me to vote for myself. Shouldn't I be able to continue to solicit proxies from owners?

A: The Condominium Property Act permits the board to adopt rules that allow owners to vote in person at an annual meeting, or by mail in ballot in lieu of proxies, to elect the board. The board may similarly adopt a rule providing for electronic voting in lieu of proxies, in elections for the board.

So, if the board adopts either of these rules, the Act provides that owners could not vote by proxy in an election for the board. These provisions of the Act arose from complaints from owners that candidates to association boards were engaging in, let's say, "uncomfortable" tactics to solicit proxies from owners.

Q: A large number of units in our condominium association are being leased by investor owners. The board president is also an investor owner, and has the "ear" of the other investor owners. As a result, she has the voting proxy for just about every investor owned units. Given the size of our association, she can control who is elected to the board. Is this legal, and isn't there a conflict of interest?

A: Unless the association's declaration imposes a restriction on the number of proxies that one individual can have, there is no limit on the number of proxies that any member of the association can obtain, including the board president. It is not a conflict of interest.

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.