Exterior lighting improperly wired to unit
Q: I am an owner of a unit in a townhouse-style condominium association. There are exterior light fixtures located at the front of each unit. These lights turn on and off automatically, and are supposed to be wired to an electric meter billed to and paid for by the association. My electrician was doing some work for me and told me the exterior lights at my unit are wired to my unit's meter, and billed to and paid for by me. As a result, I have been paying for the electricity for these exterior lights for the two years I have lived here. Is there anything I can do about this?
A: You should bring this issue to the attention of the association, with any evidence you have from your electrician supporting the claim these lights are metered to your unit. The association should have the exterior lights rewired so they are connected to the association's meter. Also, you should be reimbursed for the amount of your electricity bill attributable to theses light; although that may be a difficult calculation.
Q: The declaration for our homeowners' association states that "cumulative voting shall be permitted" in elections for the board. One of the board members contends this language gives the board the "discretion" to decide whether or not to permit cumulative voting. Is that what that language means?
A: In my view, the "shall be permitted" language means the owner can decide whether or not to vote on a cumulative basis. That is, it's up to the individual owner. The language does not mean the board can decide whether or not to permit cumulative voting.
That type of discretion by the board would allow the board to thwart the purpose of cumulative voting.
I do appreciate many associations do not like cumulative voting because it makes tabulating the vote more difficult, and that there is not necessarily any sort of nefarious motivation in not wanting to use cumulative voting. However, the correct approach to eliminate cumulative voting would be to amend the declaration and bylaws to eliminate cumulative voting.
Q: The board of our condominium has a running disagreement with a unit owner as to the scope of the resale disclosure given to prospective purchasers of units. The unit owner, who is also a real estate agent who lists many units in the association for sale, states that the current language in the resale disclosure regarding capital expenditures is chilling sales, and this person wants the language pared down. What is the association required to disclose?
A: Section 22.1(a) of the Illinois Condominium Property Act states that in the event of any resale of a condominium unit by a unit owner, such owner shall obtain from the board and shall make available for inspection to the prospective purchaser, upon demand, certain information about the association. Relevant to the question here, this disclosure information includes "a statement of any capital expenditures anticipated by the unit owner's association within the current or succeeding two fiscal years."
The time period to be covered by the disclosure should be clear. It's what constitutes "anticipated" capital expenditures that creates the issue. As I have noted in prior columns, "anticipated" generally means that something is "probable," or "likely to happen" -- meaning it is more likely than not to happen. Full disclosure needs to be included in the resale disclosure, regardless of the pushback from the real estate sales community. This is because the legal fallout of an incomplete disclosure affects the association, and not the real estate sales person.
• 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.