Condominium must allow census worker to enter building
Q: A census worker contacted our condominium association in connection with the 2020 federal census. The census worker asked to be admitted into the condominium building, to which the entry doors are locked. Does our association need to admit census workers to the property?
A: Yes, federal law provides that the association must provide the census worker access to the property. It will be up to the individual residents of the association whether to provide access to their unit; however, it is in the community's best interest to have a good census count. Failure of an association to comply can result in a fine. The association can utilize whatever security measures it has in place, like calling a resident to announce visitor, and can require the census worker to provide identification showing they are a duly accredited representative of the department of commerce.
Q: I now serve as treasurer on the board of directors for our townhouse community. I am having an issue with water infiltration into my unit. I have been told by the board president that I am not permitted to be part of discussions pertaining to the issue, or vote on the work that needs to be completed to address the issue. Is this correct?
A: A board member should not participate in a closed meeting discussion, or vote on any matter like this, that pertains to his or her specific unit.
Q: During COVID-19, is email communications a legal form of issuing notices and/or association information to owners in a condominium association?
A: Nothing about COVID-19 has changed the manner in which associations are required to issue notices required by the association's governing documents or the Illinois Condominium Property Act. This would include, for example, notices of meetings.
That said, Section 18.4(s) of the Illinois Condominium Property Act permits the board to adopt and amend rules and regulations authorizing electronic delivery of notices and other communications required or contemplated by the Act. If such a rule is adopted, an owner would still have to provide the association with written authorization for electronic delivery and provide an email address to which such communications are to be electronically transmitted.
Of course, informal communications like newsletters can be sent by any means without such a rule in place.
Q: The declaration for our condominium association requires the board to fund a reserve account. To assist in this regard, the board of our condominium association obtained a reserve study many years ago. The association's accountant, based on the reserve study, has advised the board over the last several years as to the amount that needs to be included in the annual budget for the reserve contribution. However, the board has ignored this and does not budget anything for the reserve account. The board's rationale is that it does not want to raise assessments. Does the law allow an owner to sue the board for not meeting its fiduciary responsibilities?
A: Section 9(c) of the Illinois Condominium Property Act provides that all budgets adopted by a board of managers must provide for reasonable reserves for capital expenditures and deferred maintenance for repair or replacement of the common elements. In the performance of their duties, the officers and members of the board are required to exercise the care required of a fiduciary of the unit owners.
If the board is ignoring its obligation to provide for a reserve contribution in its budget, the board is exposed to liability for breach of its fiduciary duty. The law does permit an owner to bring a cause of action against the board for breach of fiduciary duty.
• 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.