Bendoff: Residents cry foul when garbage day becomes garbage week

By David Bendoff

Q. I live in a single-family homes common interest community association. Our declaration of covenants concerns garbage. The declaration states with specificity that trash containers must be stored in the garage. It describes when the trash containers can be placed outside of the home the evening before the day of garbage pick up, and by when the trash containers must be returned to the garage on the day of garbage pick up.

Many residents within our subdivision violate this requirement all week long by keeping their garbage cans out where they are visible from the street and from other homes. The board of directors refuses to enforce this covenant, citing various questionable excuses. Can anything be done to force a board to enforce the covenants contained within the declaration?

A. I would first suggest enlisting other owners to contact the board to ask that the board enforce the covenants.

If that is unsuccessful, and if others in the community feel as you do, another way to address this issue is at the ballot box. That is, elect members to the board who will enforce the covenants.

Failure to enforce the covenants is a breach of the board's fiduciary duty. A suit could be filed against the board seeking an order requiring the board to enforce the covenants. However, that remedy is probably best suited for a more egregious breach.

Q. Our association had a multiyear written service contract with a vendor. By its terms, the contract expired several months ago. However, the vendor continues to perform, and the association continues to pay. What is the status of that expired contract?

A. Courts have taken different approaches to contracts that have expired, where the parties continue to perform. Even then, there can be serious issues as to which provisions of the expired contract continue and which provisions do not. So, this situation can create a sort of "no man's land."

Every association needs to have some reminder system in place to keep track of pending contracts, expiration dates, and dates why which notice needs to be issued to prevent auto renewal deadlines, if applicable.

Q. Can a management company co-mingle funds from different association clients in a single account?

A. Per language in two Illinois statutes, the answer is "no."

Section 18.7 of the Condominium Property Act addresses "standards for community association managers." Subsection (e) addresses the issue of commingling of funds, and it provides that: "A community association manager who provides community association management services for more than one community association shall maintain separate, segregated accounts for each community association. The funds shall not, in any event, be commingled with funds of the community association manager, the firm of the community association manager, or any other community association. The maintenance of these accounts shall be custodial, and the accounts shall be in the name of the respective community association."

Section 55(b) of the Community Association Manager Licensing and Disciplinary Act has the same language.

Q. An owner in our association was sent a notice of violation and did not request a hearing before the board, as was described in the notice. Can a fine be added to the owner's account now?

A. If the time for the owner to request a hearing has expired, steps do need to be taken by the board before a fine can be added to the owner' account. In a "nutshell," at a board meeting, the board needs to make a finding that the violations described in the notice of violation occurred, and the board needs to vote to levy a fine and state the amount of the fine. A notice of the board's determination should also be sent to the owner.

• 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.