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Maintenance worker should have a contract

Q: Our association is self-managed. The association uses a "handyman" to perform various services for the association. This person is paid on a per-job basis. It's always been handled verbally and on a "handshake." A newer board member is concerned about the lack of formality with this arrangement, and has suggested we need a written agreement with the handyman. What should we do?

A: The relationship between the association and the maintenance person should be memorialized in a written agreement. This protects both the association and the maintenance person, and will reduce the likelihood of confusion and misunderstanding over the role of the handyman. The agreement should also address issues like whether the maintenance person is an employee or an independent contractor, and responsibility to provide appropriate insurance.

Q: The number of people working from home has resulted in an increase in the number of complaints about secondhand cigarette smoke that enters the common elements and the units of our condominium building. We have seen increases in both the number of smokers working from home and puffing away, and the number of nonsmokers working from home who are impacted by the tobacco smoke. What can the association do about this?

A: The COVID era has magnified many interpersonal issues between residents of associations. This seems to be due to the proximity to one another where residents not only live, but also now work. We have seen an increase in the number of complaints involving noise, personal conduct and smoking.

The typical declaration includes a covenant that prohibits "noxious or offensive conduct," or conduct that is "an annoyance to other occupants." Secondhand smoke that migrates into other units or the common elements from a unit can rise to the level of violating such a provision.

The board can levy a fine, after providing notice and an opportunity for a hearing, if the migration of the secondhand smoke violates such language in the declaration. Additional legal remedies are available if the problem continues, such as a lawsuit to enjoin the conduct.

The association can also consider amending its declaration to prohibit smoking on the property, including within the units. Short of that, there are rules the board can adopt, without owner approval, to address secondhand smoke, without actually prohibiting smoking in the individual units. This would permit smoking but prohibit smoke and odors from migrating into the common elements or other units.

Q: I am the president of our homeowners' association. I do not plan to seek reelection when my term ends later this year. After the annual meeting, when new board members will be elected, who should run the board meeting?

A: Officers of an association are elected annually by and from among the members of the board. This occurs at a board meeting; frequently held immediately after the annual meeting of owners to elect the board. If the former board president is no longer on the board at that time, the first order of business for this board meeting should be to elect a person to chair the meeting until the president is elected. Once the board elects the president, the president can preside over the balance of the meeting.

Q: The bylaws for our common interest community association provide that a quorum of the owners for a meeting is a majority of the owners. Does this require 51% of the owners to be present to establish a quorum?

A: Here, one more than 50% of the owners is a majority of the owners, and constitutes a quorum. Depending on the number of units in the association, this may be less or more than 51% 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.

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