Unit votes cannot be split in elections
Q: Each condominium unit in our association is entitled to one vote, regardless of the number of co-owners of the unit. Can the bylaws be changed to allow each of the co-owners of a unit to have a vote? If not, can the bylaws be changed to permit the vote be divided among the multiple co-owners of the unit?
A: It would not be practical or prudent to give a unit votes based on the number of co-owners. And splitting the vote attributable to a unit among the co-owners is not supported in the law.
In a condominium, if only one of the multiple owners of a unit is present at a meeting of the association, he or she is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority of the multiple owners, unless the declaration expressly provides otherwise.
A majority agreement happens when any one of the multiple owners present casts the votes allocated to the unit without a prompt protest at the meeting from any other owners of the unit. This is all described in the Illinois Condominium Property Act.
Q: Are association board members allowed to hold discussions/meetings outside of an actual board meeting to discuss issues where no vote is taken?
A: This is an issue that comes up very often. The law on this question is the same for condominium and common interest community associations in Illinois. The board may meet separately from a noticed meeting to discuss specific topics.
Those allowed topics are litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal, or when the common interest community association finds that such an action is probable or imminent; to discuss third party contracts; or to share information regarding appointment, employment, engagement or dismissal of an employee, independent contractor, agent or other provider of goods and services; to interview a potential employee, independent contractor, agent or other provider of goods and services; to discuss violations of rules and regulations of the association; to discuss a member's or unit owner's unpaid share of common expenses; and to consult with the association's legal counsel.
However, no vote may be taken at these gatherings, and any vote on these matters may only be taken at a board meeting or portion thereof open to any member of the association.
Q: We are a common interest community association composed of detached single-family homes. Our bylaws state we cannot waive or forgive any payment owed by an owner. But we continue to write-off our receivables. Our lawyer states that we are not forgiving any debt because the write-offs are due to foreclosures and bankruptcy. Can we put a lien on the property and collect our past due assessments at the sale of the property?
A: The association has lien rights and can file a lien for unpaid assessments. However, the association's lien would be extinguished by the judicial sale in the foreclosure. The association could nonetheless pursue collection of unpaid assessments from a former owner.
Whether or not to do so depends on a variety of factors, the most important of which is whether the former owner has assets that are sufficient to satisfy a judgment the association may obtain.
While an owner's personal obligation to pay assessments may be extinguished in the owner's bankruptcy, the association's lien against the unit for unpaid assessment typically is not. Therefore, an association may still be able to collect unpaid assessments from the proceeds of the sale of the "bankrupt" owner's 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.