Owner is responsible for balcony damage

Q: Our condominium association is in the process of performing extensive repairs on the balconies. During an inspection by the contractor, it was learned that an owner used an epoxy to install carpet on the balcony serving his unit. It is going to be very expensive to remove the carpet and repair balcony damage caused by the epoxy. The balconies are limited common elements; however, the declaration does not provide for chargeback of limited common element expenses. Who is responsible to pay for the damage here?

A: The typical condominium declaration includes language to the effect that owners are responsible for common element maintenance, repair and replacement expenses caused by their act or omission. Such a provision, if in your declaration, would be applicable here. Such a provision would permit the association to charge the owner the cost to perform the repairs to the balcony that are necessary due to the owner's actions.

Q: Our condominium association hired a contractor to replace the common element roof of the building. The contractor and the association are now in a dispute over the quality of the work. The contractor was not paid in full, as the board has held back final payment. As a result, the contractor filed a lien against all of the individual units and their interest in the common elements. I have a closing scheduled for the sale of my unit. Will this lien prevent me from closing the sale?

A: The contractor's lien should not prevent you from closing on the sale of your unit. In these situations, it is common for the association to provide a "hold harmless" letter to the title company that is handling the closing. The "hold harmless" would permit your unit to close despite the lien, because the association is agreeing to make the title company whole for any loss it may suffer.

Q: I have a question regarding the annual election for our association. There are three known candidates for four positions on the board. One additional person is thinking about running as a write-in candidate. If he is the only write in candidate, does he automatically get elected to a seat on the board?

A: A candidate is a candidate, whether they followed the procedure to be on the preprinted association proxy and ballot or whether they are a write-in candidate. If there are four candidates for four board positions, all four candidates would be elected to the board, as long as each candidate receives at least one vote.

Q: Does a write-in candidate need a greater number of votes to be elected than a candidate who is on the preprinted association proxy and ballot?

A: Similar to above, a candidate is a candidate. The candidates receiving the highest number of votes, relative to the number of board seats to be elected, are elected - regardless of whether they are identified on the preprinted association proxy and ballot or whether they are a write-in candidate.

Q: If a person who is identified on the preprinted association proxy and ballot and another person who is a write-in candidate receive the same number of votes that are enough to be elected to the last seat on the board, which candidate gets elected?

A: Again, a candidate is a candidate, and a vote is a vote. A tie vote among candidates for the last open seat on the board can be resolved in a couple of ways. One would be something like a coin flip; the other would be a runoff election between the two candidates who tied for that last seat.

• 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.