Residents upset about pandemic delays
Q: I have been a member of my common interest community association since the purchase of a new townhouse in November 2015. For all this time, the association has been under developer control. As of May, the threshold of sales was met to require the developer to turn the association over to the owners.
However, the developer has withheld the turnover, claiming rules during the COVID-19 pandemic established by the governor of Illinois regarding meeting sizes is the reason why it cannot discuss the turnover of the HOA with residents. My question is how can we proceed with the turnover of the association as soon as possible?
A: The Common Interest Community Association Act provides that the election of the initial board, whose declaration is recorded on or after July 29, 2010, the effective date of the 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. Because your association's declaration was recorded after the Act went into effect, the turnover language of the Act is applicable.
Under the Act, the developer must give at least 21 days' notice of the meeting to elect the initial board of directors. If the initial board of a common interest community association is not elected by the time established in the Act, the developer continues in office for a period of 30 days, whereupon written notice of his or her resignation must be sent to all unit owners or members.
Based on the information provided, the initial meeting should have been held in July, and the developer resigned by operation of law in August. At this juncture, owners could demand that the developer hold the initial meeting, or call and hold the meeting on their own.
Q: My condominium association is self-managed. Recently, the officers of the board conducted a conference call with a consultant that the majority of the board members are against hiring. The officers intentionally excluded the full board from the call. The other board members found out about the call after the fact and by accident. Was the action of the officers of the board proper?
A: The call with the consultant involving less than a quorum of the board here did not violate the letter of the Condominium Property Act. However, "covert" actions of this sort by a faction of board members can certainly lead to division and mistrust among both the board and unit owners. In general, all board members should be invited to participate in discussions of this sort.
Q: An owner in our association violated the occupancy limitation ordinance imposed by the city in which the association is located. Does the board have the ability to fine the unit owner for this?
A: The typical declaration for an association includes language that owners shall not permit anything to be done or kept in their respective units that would be in violation of any law. A violation by an owner of a local city ordinance regarding use of a unit would be a violation of this sort of language. The board of directors could levy a fine, after providing the owner here with notice of the violation and an opportunity for a hearing.
The association could reach out to the city's code enforcement department, because the city might take enforcement action also as a result of the violation.
• 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.