Rewrite notice to conform with rules
Q. The board of our association uses a notice of violation form that one of the board members brought from another association where he owns a unit. Another board member believes this violation form does not conform to our rules regarding notifying the owner of a hearing in front of the board on the violation. Is this an issue?
A. There is no one size fits all notice of violation provision as to this issue.
The rules of some associations provide that the notice of violation is to include the date, time and location of the hearing.
Rules for other associations provide that the owner has a certain number of days from the date of the notice of violation to request a hearing in writing. If the owner timely requests a hearing, the board will then advise the owner of the date, time and location of the hearing.
Association rules violation hearings have come under the scrutiny of the Illinois appellate court. It is important that associations, and management companies, use a notice of violation that conforms to the particular association's rules on the issue of the hearing date.
Q. I am an original owner of a townhouse built in 1997. A useful life study in 2012 noted major structural improvements/repairs that will need attention in future years. Our board has refused to raise assessments to pay for those repairs, or to perform the needed work, or to hire much-needed professional management. Many owners live here a couple of years, and then move on. What protects a longtime owner like me against "special assessments" that may be needed because of long-term underfunded reserves.
A. That special assessment may be inevitable. However, the practical approach is to convince like-minded individuals to run for, and control, the board. Then, a more realistic approach to addressing the responsibility of the board can be implemented.
There is an alternative of filing suit against the board for breach of fiduciary duty. However, that is likely to be very expensive and prolonged.
Frankly, if the ownership in general is OK with how the current board is handling matters, you may want to consider if this is where you want to call home. I was in that position a few decades ago, and moving on from a poorly operated condominium was a great decision!
Q. Under state law, can a board member who will be on an airplane and unable to participate in a board meeting by phone, give a proxy to another board member to vote on matters at a board meeting?
A. A board member cannot vote by "proxy." This is set forth in Section 108.05(d) of the Illinois General Not for Profit Corporation Act. That section states that "No director may act by proxy on any matter."
As an aside, I was on an airplane recently where a neighboring passenger was participating in a video association board meeting with his laptop via the airline provided (for a fee) internet service.
Q. Our condominium association has a cash flow problem. The board of the association wants to give owners an incentive to pay a year's worth of monthly assessments in a lump sum at the beginning of the year. Can the board offer a discount to owners who pay their regular monthly assessments in a lump sum at the beginning of the year?
A. The Illinois Condominium Property Act expressly provides that the board shall have no authority to forebear collection of assessments. As a result, the board cannot offer an assessment discount to the owners who pay early. Further, a shortfall in income would be created if the association receives less than the entire budgeted assessment income due to such discounting.
• 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.