Law supersedes declaration for insurance purposes
Q: A water leak from a pipe in a unit damaged many units and the common elements in our condominium building. The insurance carrier has indicated that its coverage responsibility is limited by the antiquated language in our declaration of condominium. The board of directors of the association understands that language in the Illinois Condominium Property Act would greatly expand the insurance carrier's responsibility to cover the damage. What applies here, the declaration or the Act?
A: The provisions of Section 12 of the Illinois Condominium Property Act governs the insurance coverage issue, and not necessarily the language of the declaration of condominium. This applicability is established by a couple of provisions of the Act.
Section 12 of the Act provides that no policy of insurance shall be issued or delivered to a condominium association, and no policy of insurance issued to a condominium association shall be renewed, unless the insurance coverage under the policy includes the coverages set forth in Section 12.
Section 2.1 of the Act provides that unless otherwise expressly provided in another Section, the provisions of this Act are applicable to all condominiums in this state. Any provisions of a condominium instrument that contains provisions inconsistent with the provisions of the Act are void as against public policy and ineffective.
Therefore, the property insurance policy issued by the association's insurance carrier needs to conform to the Act and not to more limited language in the association's declaration of condominium.
Q: The 2021 annual budget for our condominium was distributed to owners, and each owner was advised of their own monthly assessment for 2021. Are owners entitled to know the monthly assessment for other units?
A: Initially, applying any unit's percentage of ownership to the budgeted assessment income should reveal that unit's assessments. That said, Section 9(c)(1) of the Illinois Condominium Property Act provides that the budget shall also set forth each unit owner's proposed common expense assessment.
Therefore, each owner would have access to the assessment amount for the other units.
Q: The declaration of condominium for our association indicates that floors are the lower boundary of the units. The declaration does not talk about the finished flooring, like the hardwood floors. Are the wood floors part of the unit or the common elements?
A: This is covered under Section 4.1(a)(2) of the Illinois Condominium Property Act. That section provides, in relevant part when the declaration is silent, to the extent that perimeter and partition floors are designated as the boundaries of the units or of any specified units, all floor coverings and finished flooring and any other materials constituting any part of the finished surfaces thereof, shall be deemed a part of such units, while all other portions of such floors shall be deemed part of the common elements.
If the declaration is silent, hardwood flooring would be part of the unit, for which the owner is responsible to maintain, repair and replace.
Q: I am a property manager. In order to protect my privacy in an increasingly hostile world, I have started to use a fictitious name in my day-to-day service as a manager. My Illinois community association manager license is in my actual name. Can I continue to use my pseudonym?
A: I absolutely appreciate the perception that many people seem to be wound a little tighter than usual these days. This may partially be attributable to the stress of the pandemic. And I understand the desire to work under a pseudonym. However, a property manager must practice under the full name shown on their license. Failure to do so is grounds for discipline under the Community Association Manager Licensing and Disciplinary Act.
• 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.