Declaration outweighs condo bylaws

 
Posted10/31/2020 7:00 AM

Q: The condominium declaration for our association provides for a five person board of directors. However, bylaws attached as an exhibit to the declaration provide for a three-person board. Which number of board members is correct?

A: Section 4(b) of the Illinois Condominium Property Act addresses the issue of conflicting language in the declaration and bylaws. In general, in the event of a conflict between the provisions of the declaration and the bylaws or other condominium instruments, the declaration prevails. In your situation, the language of the declaration regarding the number of board members would control over the language of the bylaws. Your association would have five board members as stated in the declaration, not the three board members stated in the bylaws. Under Section 27 of the act, the board could adopt an amendment to the bylaws, without unit owner approval, to correct the inconsistency so that the bylaws are in "sync" with the declaration on this issue.

                                                                                                                                                                                                                       
 

Q: How can I determine the actual boundaries of my condominium unit?

A: Simultaneously with the recording of the declaration of condominium, a plat of survey is to be recorded. The plat is typically recorded as an exhibit to the declaration of condominium and not as a separate document. The plat of survey shows the entire condominium property and of all the individual units in the property submitted to the provisions of the Condominium Property Act.

The plat shows the three-dimensional horizontal and vertical delineation of all such units. Said a little differently, the plat would show the linear measurements of the perimeter boundaries of that part of the property which constitute a unit. Every unit is identified on the plat by a distinguishing number or other symbol. Review of the plat of survey would identify the boundaries of your unit.

Q: The board of our association received a petition from the owners. The petition requested that the board issue notice of a meeting of the owners to vote to remove a board member. The board issued the notice of the owners' meeting. Was the board also required to issue a proxy allowing owners to vote if they cannot attend the meeting in person?

A: Owners with the necessary percentage of ownership can "call" a meeting of the owners in the association to vote on removal of a board member. If the board receives a proper "call" of a meeting from the owners, the board would be required to set and issue notice of a meeting of the unit owners. Although it is common for a proxy to be issued with a notice of an owners' meeting, the board is not required to issue a proxy for this or any owners' meeting.

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Q: Our prospective management company has advised the association that its fidelity insurance coverage is less than the total amount of association funds over which it has custody or control. Is this permitted under the Condominium Property Act?

A: Fidelity insurance is discussed in two sections of the Illinois Condominium Property Act. The operative language provides "(all) management companies which are responsible for the funds held or administered by the association shall maintain and furnish to the association a fidelity bond for the maximum amount of coverage available to protect funds in the custody of the management company at any time." The phrase "for the maximum amount of coverage available" would seem to recognize that there may be a maximum amount of coverage available that is less than the total amount of funds in the custody or control of the management company at any time.

• 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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