Board needs to meet with commissions
Q: I am a member of our association's architectural control commission. Owners submit architectural change requests to the commission. The commission reviews an owner's submittals, speaks with the owner, and then makes a thoughtful recommendation to the board. The board frequently ignores the recommendations of the commission. On numerous occasions, the board will approve one owner's request and deny another owner's request for the same requested change! Seems like the board plays favorites with some owners. Any suggestions?
A: I would suggest that the members of the architectural control commission and the members of the board meet to address this issue. Hopefully, the board can provide some rational insight as to why it deviates from the commission's recommendations. However, if it appears that the board's decisions are arbitrary and capricious, and/or the board shows favoritism, that could create liability exposure for the association. An effort to search for and elect board members who take their duties more seriously should be considered.
Q: I am having a little "battle" with my association over a rule that requires owners to pay assessments by direct auto debit only, rather than by check. Can the association require owners to pay assessments by direct auto debit?
A: Direct debit allows an association to withdraw payments directly from an owner's bank account. Auto debit would allow the association to do this on a recurring basis.
An owner can voluntarily agree to such a direct auto debit arrangement. However, an association cannot unilaterally require an owner to pay assessments by direct auto debit.
Many associations establish an auto debit program. This would permit owners to authorize their bank to automatically debit the owner's account in the amount of the monthly or a special assessment on a preset day of the month in the name of the association. This eliminates the need for the owner to write checks or pay for postage, and reduces exposure to late charges, and improves the association's cash flow.
Any auto debit agreement needs to be carefully reviewed by owners, and owners do have a right to stop the arrangement.
Q: Does the board of an association have the right to know the names of all of the occupants of a unit?
A: This is an important security issue. Yes, the board has the right to know who is occupying the units. The association's rules should address this issue and requirement. The rules could provide for the completion of an annual census form by owners, and require owners to timely advise of any change in occupancy of their units in between census forms.
Q: One of the units in our condominium association was sold in a mortgage foreclosure sale. We understand that the foreclosure extinguished the association's lien for the unpaid assessments that were owed at the time of the foreclosure sale. However, can the association pursue the former unit owner for those unpaid assessments?
A: Yes. Unless the assessments were discharged in a bankruptcy, the association can pursue the collection of the unpaid assessments from the former unit owner. This is accomplished through a breach of contract suit.
Q: Owners in our condominium are very "privacy" conscious. Are elections in a condominium conducted by way of a secret ballot?
A: Elections for the board of directors are not automatically conducted by secret ballot. Rather, under the Illinois Condominium Property Act, the board of directors can adopt rules that would permit an election to be conducted by secret ballot. The rules would have to provide that the ballot would only be marked with the percentage of ownership for that unit and show the vote that was cast.
• 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.