Attorney represents board
Q: I am a unit owner in a condominium association. I sent the association's lawyer a request for an opinion on an issue concerning the association. The attorney responded that she is unable to respond to owner inquiries, and that I should submit my issue to the board. As a member of the association, doesn't the association's attorney represent me, and shouldn't she have provided me the requested legal opinion?
A: The attorney for the association represents the association through its board of directors. The association's attorney does not represent the individual owners, and the interest of individual owners can be adverse to the interest of the association. The attorney's response to you was spot on.
If you have an issue, you should submit it to the board. The board will then decide if it wants guidance from the association's attorney. That said, any guidance the board receives from the association's attorney would be privileged and not necessarily shared with the unit owners.
Of course, you could retain your own attorney to provide you guidance on the issue you have concerning the association.
Q: The language in our declaration of condominium requires the board to deliver notice of amendments to the declaration to the holders of mortgages recorded against the individual units. The board has requested owners to provide the board with the name and address of their mortgage holders. Most owners have been cooperative; however, some owners have ignored us, and some owners claim this is "private" information What can the board do?
A: Section 22.1(c) of the Illinois Condominium Property Act provides that, within 15 days of the recording of a mortgage or trust deed against a unit to secure a debt, the owner must inform the board of the identity of the lender together with a mailing address at which the lender can receive notices from the association. If a unit owner fails or refuses to inform the board, the Act goes on to provide that unit owner is liable to the association for all costs, expenses and reasonable attorney's fees incurred by the association as a result of such failure or refusal.
Therefore, the board should issue a communication to the owners that includes a deadline to provide the mortgage holder information to the board. The board's communication to the owners should state that if the mortgage holder information is not provided by that date, the board will have counsel obtain the information through a title company, and the cost of the title report and attorney's fees will be charged to the owner.
Notably, there is nothing "private" about the mortgagee information, as the mortgage is a public record and available through the Recorder of Deeds.
That should motivate owners to respond. If it doesn't, the board should proceed as described above.
Q: Can you please clarify the condominium law regarding the board voting by email?
A: The Palm Illinois appellate court decision held that decisions of the board need to be made at properly noticed, open board meetings, and that the board cannot vote by email. An exception to this was established legislatively after the Palm decision by an amendment to the Condominium Property Act.
Section 18(a)(21) of the Act permits the board to ratify a decision that is made outside of a board meeting in an emergency, under certain conditions, and further requires certain information be provided to owners after the decision is made. Emergency has a specific definition in the Act, and means "an immediate danger to the structural integrity of the common elements or to the life, health, safety or property of the unit owners." These emergency decisions could be made by an email vote, or by conference call, for example.
• 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.