'Hoarding' condo owner can be forced to sell unit

Q: Can a condominium association legally kick an owner out of the building because the owner is a hoarder and because the unit is "ground zero" for repeated and serious bug issues in surrounding units?

A: The involuntary sale of a unit is a remedy available to a condominium association under most condominium declarations. This requires the filing of a suit against the unit owner and obtaining a court order allowing for such an involuntary sale. The condominium declaration typically includes language that requires the board to issue notice to an owner of the violation and of the association's intent to do seek an involuntary sale of the unit if the conduct continues or recurs.

This remedy is reserved for the most egregious conduct; usually where the owner is a threat to the safety of the other residents or their property. Under appropriate circumstances, this relief can be sought in a hoarder/bug infestation situation.

Q: Following the turnover of control of our condominium from the developer, the board has received an engineer's report that identifies serious defects in both the individual units and in the common elements. Do the individual owners need to bring their own claims against the developer, or can the board assert these claims?

A: Under the Illinois Condominium Property Act, the board of managers has standing and capacity to act in a representative capacity in relation to matters involving the common elements or more than one unit, on behalf of the unit owners, as their interests may appear. Therefore, the board can assert claims against the developer involving more than one of the individual units.

Q: The board of our association frequently meets in "closed session" as permitted by law, and then votes on a matter discussed there in an open board meeting. Sometimes, the "closed session" occurs before the board meeting, and sometimes it occurs during the board meeting. Can a board member who did not attend the "closed session" vote on the matter when it comes up in the open board meeting?

A: Yes, a board member who does not attend/participate in a discussion in "closed session" of the board may nonetheless vote on the matter in the open portion of the board meeting. That said, depending on the issue and discussion, the board member who does not attend may miss hearing important information that may affect his or her vote if the member did not attend the "closed session" discussion. That can call into question whether the board member is properly carrying out his or her fiduciary duty.

Q: The attorney for our association prepared an amendment to the condominium declaration to transfer a parking space from one unit to another. Another owner wants to do a similar transfer. In order to save on legal fees, the manager for our association stated that he can prepare the amendment by using the amendment the attorney prepared as a form. Is that a good idea?

A: No, it is not a good idea. The manager's preparation of an amendment to the declaration could be considered the unauthorized practice of law. That could jeopardize the manager's license.

Moreover, there may be nuance in a particular situation that is not recognized by a layperson that causes an error that is fatal to the validity of the amendment.

"Penny wise and pound foolish" comes to mind here.

Q: Can one board member of an association serve as both the secretary and treasurer?

A: Neither the Illinois Condominium Property Act nor the Illinois Common Interest Community Association Act speak to this issue. However, Section 108.50 of the Illinois General Not for Profit Corporation Act states that "if the bylaws so provide, any two or more offices may be held by the same person." Therefore, the bylaws of your association need to be reviewed to see if they specifically authorize one board member two serve in multiple officer positions.

• 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.