When a board can rule on an issue without owners' approval

Q: I am a portfolio property manager and I have managed many condominium and common interest community associations over the years. One issue in particular seems to come up over and over again regarding leasing and pets. Under what circumstances must a declaration of condominium/covenants be amended with owner approval versus when can the board alone adopt a rule to restrict leasing or pets, or to address other issues?

A: In a nutshell, oversimplifying, and in general, if a declaration grants rights to owners, the imposition of restrictions on those rights requires an amendment to the declaration of condominium/covenants. If a declaration of condominium/covenants is silent on an issue, rules can generally be adopted to impose restrictions concerning the issue. The significance of this is that an amendment to an association's declaration of condominium/covenants requires some level of unit owner approval; whereas the board can generally adopt rules without owner approval.

Q: We are a small common interest community association of single-family homes. Our governing documents require an annual meeting of homeowners to elect board members. The two-year terms of board members are staggered. Our current board has not held a homeowner meeting, or a meeting to elect members to the board, in at least three years. The governing documents do not outline penalties for ignoring the requirements to hold an annual meeting. Given there are no penalties outlined in the governing documents, what can be done to force the meetings and elections to occur? Is the current board invalid under Illinois law given it has not been appropriately reelected?

A: Under Illinois law, a member of the board serves until their successor is elected. So, the failure to hold an annual meeting when it was supposed to occur does not affect the validity of the board or of action taken by the board.

However, the Illinois Not for Profit Corporation Act describes the process that owners can follow if an annual meeting is not held at the time proscribed by the association's governing documents.

Specifically, if an annual meeting has not been held within the earlier of six months after the end of the corporation's fiscal year or 15 months after its last annual meeting, a unit owner may make a request for a meeting in writing directed to the president of the association. If a notice of annual meeting is not delivered by the association to members entitled to vote within 60 days of such request, then any member of the association who is entitled to vote at an annual meeting can file suit in the circuit court of the county in which the association is located. The suit would seek an order directing that the annual meeting be held, and fixing the time and place of the annual meeting. The court may also issue such additional orders as may be necessary or appropriate for the holding of the meeting.

Q: The board of our association appointed various owners to serve on various commissions of the association. Unfortunately, some of the people appointed to the commissions do not play well with others. Can the other members of the commission remove this person from their commission?

A: The board of directors of the association appoints the members to the commissions. Members of a commission serve at the pleasure of the board. As such, members of a commission can be removed by the board, and such a decision is made at a board meeting. The members of the commission do not remove members from the commission.

Of course, members of a commission should advise the board if there are issues with a commission member, so that the board can take action to remove that commission member, if the board deems that to be appropriate.

• 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.