Association president should vote on most issues

Q: The president of the board of our homeowners' association does not vote on any matter or motion that comes before the board, except if there is a tie vote. She says she is not supposed to vote in general, and that the board president only votes to break a tie. Is this correct?

A: This issue comes up repeatedly. There is a very common misunderstanding about voting by the president of a condominium or common interest community association. Many people think a board president only votes to break a tie. That is absolutely incorrect.

The president of a condominium or common interest community association, like every other member of the board, is a fiduciary of the owners, has a vote, and should exercise their vote; except if there is an appropriate reason to abstain from voting. Not voting on matters before the board is arguably a breach of a board member's fiduciary duty, except if there is a legitimate reason for a board member to "abstain" from voting on a particular issue.

In a municipality, the president only votes to break a tie. It may be association board member exposure to this municipal voting practice that leads to the misunderstanding as to the role of the association board president in voting.

Q: The board of our condominium is pushing hard to have unit owners consent to receive notices by email. The board is telling owners they will be charged for management time and postage if notices need to be sent to an owner by U.S. mail. Is this permitted?

A: This is governed by 18.8(f) of the Illinois Condominium Property Act. If any person does not provide written authorization to conduct business using acceptable technological means, such as email, the association must, at its expense, conduct business with that person without the use of acceptable technological means. That means the association cannot charge an owner for expenses related to sending notice by mail if an owner does not consent to receive notice by electronic means.

Q: The annual meeting for our association is coming up shortly. So far, we have received only one candidate form for the three-board member positions whose terms expire at the annual meeting. The deadline for submitting candidate forms is near. What happens if we don't have three candidates?

A: Initially, it would be prudent to issue some sort of reminder to the owners about the need for candidates for the board.

That said, the annual meeting would proceed even if there is one candidate for the three positions. Unless candidates are nominated from the floor of the annual meeting, this lone "announced" candidate would seemingly be elected to one of the three open seats. Per language in the General Not for Profit Corporation Act, two of the board members whose terms would otherwise expire at the annual meeting would continue on the board until their successors are elected. If that does happen, the minutes of the annual meeting need to carefully reflect this; to reduce the likelihood of confusion in next year's election.

Q: Is it proper for our condominium association to send out proxies for the annual meeting without advising the owners about who is running for election?

A: Per Section 18(a)(18) of the Illinois Condominium Property Act, any proxy distributed for board elections by the board of managers must give the unit owner the opportunity to express a preference for any of the known candidates for the board or to write in a name. Therefore, if there are known candidates when the proxy form is distributed, the known candidates do need to be identified on the association-issued proxy.

• 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.