Verbal resignations do not count
Q: The pandemic seems to be shortening the fuse of a lot of people these days, and the board members for our condominium association are no exception. Unfortunately, there are two board members in our condominium who really don't get along with each other, and each board meeting usually includes an argument between them. The two of them engaged in a particularly hostile shouting match during a recent board meeting. Just after the meeting ended, one of the arguing board members made the statement to all the other board members that "I've had enough of this nonsense, I'm done; I'm off this board right now." The next day, he apologized and asked if the board would ignore his resignation comment. There are mixed feelings about that on the board. Was the board member's pronouncement a valid resignation?
A: Initially, let me misquote a great one-liner from Rodney Dangerfield: "I went to a fight the other night and a board meeting broke out." Based on reports from associations and managers, anything resembling civility seems to have left many association board meetings.
Under the Illinois Not for Profit Corporation Act, the verbal resignation was not effective. The Act is applicable to all condominiums, and to incorporated common interest community associations. Under the Act, a director may resign at any time by written notice delivered to the board, or delivered to the president or secretary. The written resignation is effective when it is delivered, unless the notice of resignation specifies that it is effective on a future date.
Q: It is very difficult to find owners willing to serve on the board of our condominium association. Owners explain that they are just too busy and don't have the time. A board member floated the idea of allowing co-owners of a unit to fill one position, to reduce the time commitment of any one board member. Can we allow co-owners of a unit to share a single position on the board?
A: There is no authority for two people to share a position on the board. Further, in general, only one of the multiple owners of a unit can serve on the board at one time.
Q: We have an issue with several unit owners who receive late charges for the frequent late payment of their monthly assessments. We also have owners who are frequent rules violators who have been assessed fines. The account ledgers for these owners indicate they owe substantial amounts in late fees and fines; however, their monthly assessments are paid in full. Can we utilize the eviction remedy against these owners?
A: An Illinois association can utilize the forcible entry and detainer (eviction) suit to collect unpaid assessments and other lawful charges. However, as a practical matter, most judges, in my experience, will not enter an order evicting a person from their home when the unpaid balance is comprised entirely (or mostly) of charges like late fees and fines, rather than assessments.
Associations are not without a remedy though. A breach of contract suit can be filed against the owner. This would result in a judgment in the amount of the unpaid late fees and fines, just like in an eviction suit. However, the association would have to collect the judgment through, for example, a wage garnishment, rather than through rent collected from having possession of the unit.
Q: Immediately after the annual meeting for our association, the newly elected members of the board met in private. The purpose of the gathering was to determine who would serve in each officer position. Was this appropriate?
A: The private meeting to elect officers was not proper. The election of the officers (president, secretary, treasurer and, if applicable, vice president) must be conducted by the board at a duly called and held board meeting or portion thereof that is open to all of the owners.
• 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.