Board must not ignore its maintenance duties

Q: The board of our condominium association frequently puts issues to a poll of the owners, even when the decision is solely within the jurisdiction of the board. Recently, owners were questioned about a significant common element repair project. A majority of the owners "voted" against it, as they don't want to spend the money. However, the association's consultant strongly suggests the project proceed, and noted that the work is necessary to stop damage to the property. Should the board vote on its own to proceed with the repair project, or follow the guidance of the owners?

A: The board, not the individual owners, has a fiduciary duty to the unit owners, and it is the board that is elected to administer the affairs of the association and to maintain the common elements. While the board can take a "straw poll" of owners on issues, the board should, in general, make decisions based on advise of its experts and not based on the sentiment (and potentially limited knowledge on an issue) of unit owners. That is, the board cannot abdicate its responsibility and fiduciary duty because of the results of a poll of owners.

Q: The property manager assigned to our condominium association is also a part owner of the management company for the association. Further, the property manager also owns a unit in our association. Can the property manager run for the board of managers of our association? It would seem like a conflict of interest. Wouldn't the property manager have to divorce himself from the management company before running for the board?

A: The fact that the property manager is a unit owner in the association satisfies the sole qualification in Illinois for membership on the condominium board. The property manager who owns a unit in the association, and who owns a part of the management company that is the managing agent for the association, is eligible to run for and to be elected to and serve on the association's board.

Depending on the ownership interest the property manager has in the management company, the board may have to follow the process set out in Section 18(a)(16) of the Condominium Property Act; if and when the board considers a new agreement with this management company, and if the property manager is on the board at that time.

Therefore, whether to elect this owner to the board is going to be a political issue. That is, it is going to be up to the owners to decide whether they want to elect this person to the board under these circumstances.

Q: I am an owner in a community association. In mid-October, I notified management that the flashing on a roof dormer above our unit was loose and flapping in the wind. There has been back and forth with management; however, the flashing has not been repaired and has since fallen off completely. This section of my unit is now exposed to the elements, and I suspect will suffer damage during the winter months. What are my options?

A: The failure of management to address the issue may be an issue with management, or it may be an issue with the board failing to provide direction to management. To cover your bases, it may be useful to contact the board directly about this issue.

In any event, if the association is on notice of a maintenance issue for which it is responsible, and if the association fails to take timely and/or appropriate action to correct the issue, the association can be exposed to liability for damages to your unit that results.

• 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.