Board members' term begins at election

 
Posted8/15/2020 1:38 PM

Q: The bylaws for our association provide that the election to the board of our association takes place in November of each year. However, the bylaws are silent as to when the term of the newly elected board members begins. Would it be Jan. 1?

A: The terms of the board members elected at the annual meeting begin immediately upon their election; not at some future date. The bylaws for many associations provide that a meeting of the newly elected board is to take place upon the conclusion of the annual meeting. The board typically elects the new officers at this meeting.

                                                                                                                                                                                                                       
 

Q: I live in a common interest community association. Part of our monthly assessment pays for the upkeep of our swimming pool. This includes paying the for chemicals and electricity. With the outbreak of COVID-19, our pool is closed this year. We are still paying these expenses, without the benefit of being able to use the pool. Is the association responsible for crediting us any sort of compensation?

A: This is an issue I receive a lot of inquiries about. No, the owners are not entitled to a credit or compensation as the result of an amenity, like the pool, being closed during the pandemic.

Owners don't pay assessments to use amenities like the pool here. Rather, owners pay assessments so the association (on behalf of the owners such as yourself) can pay for maintenance, repair and replacement of, and utilities and insurance for, the amenities. This would include amenities like a pool. The expenses for the amenities are not necessarily being reduced during the pandemic, and you note they are continuing. In many instances, associations are actually exceeding line items in budgets for cleaning of the common amenities.

However, if for whatever reason the association does have a surplus in its operating account at the end of the year, the surplus would be addressed in the manner set forth in the association's declaration.

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Q: Does the law regarding community associations require that an individual board member's vote on each motion be recorded in the minutes?

A: The issue of how individual board members' votes are recorded is not governed by the statutes for Illinois associations. Board votes are typically by voice vote ("yay or nay") or show of hands, without identifying how each member votes. The minutes would reflect the vote like, for example, "three in favor, two opposed, motion passed." That said, Robert's Rules does provide for a "roll call" vote wherein the minutes would reflect how individual board members voted on a motion, if a "roll call" vote is requested.

Q: A board member of our condominium has a contract for the sale of their unit. Should this board member resign?

A: Under the Illinois Condominium Property Act, a person is qualified to serve on the board as long as they are an owner. While many board members do resign once their unit is listed for sale, or once they have an actual signed contract for the sale, they are not required to do so. They may remain on the board through the closing of the sale of their unit.

That said, board members who remain on the board while their unit is for sale need to be cognizant of their fiduciary duty to the association. Such board member must continue to act in the best interest of the Association, and not out of a personal self-interest. This duty can be "tested" if such a board member is called upon, for example, to vote on a special assessment or budget increase that might not be "attractive" to prospective purchasers of their unit.

• 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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