Board should not require unnecessary removal of patio
Q: An owner in our association replaced their unit's concrete patio with brick pavers. This was done without obtaining the prior approval of the board of directors as required by the association's declaration and rules. Many owners have performed this replacement in the past (with permission of the board). The board would have approved the work here, had the owner followed the proper procedure. Can the board nonetheless require the owner to remove the brick paver patio and reinstall a concrete patio because of his failure to obtain prior board approval to install the brick pavers?
A: Requiring the owner to remove the patio as punishment for failing to obtain the required prior approval of the board, where the board would have approved the work had the owner followed the proper procedure, is not generally an appropriate remedy.
The board can, however, levy a fine against the owner for failing to follow the proper procedure set forth in the association's declaration and rules. The owner would need to be provided written notice of the violation, and afforded an opportunity for a hearing, before a fine is levied.
I find owner blunders of this sort are often the result of ignorance of the governing documents. It may be useful for the association to remind owners, from time to time, of the type of work that needs prior approval of the board.
Q: A three-year agreement between our homeowner's association and a vendor terminates on March 1 of next year. There is no automatic renewal provision. However, the agreement does state it can be extended by "mutual agreement." We do not want to continue with this vendor after the term ends. Is there anything the board needs to do?
A: If the term of the agreement terminates on a specified date, there is typically nothing further that either party needs to do. However, the language you refer to, that the agreement can be extended by "mutual agreement," can result in a misunderstanding as to the interpretation of whether there is any sort of "mutual agreement." Therefore, in an abundance of caution, the board should issue a written communication to the vendor here, reminding the vendor that the agreement terminates on March 1 and is not being extended.
Q: We are a small association with a three-member board. One of the board members is going to resign. We cannot find another owner who is willing to serve. Can we operate as a two-member board?
A: The board can operate with two members. However, all decisions will have to be unanimous. Moreover, the association could not continue as a not-for-profit entity when the next annual report is due to be filed with the Illinois Secretary of State. That is because the Secretary of State requires a minimum of three members on the board.
The owners need to understand the importance of having a three-person board, and step up to serve.
Q: The board of our condominium distributed the proposed 2023 budget to the owners and issued notice of a board meeting to adopt the 2023 budget. After the proposed budget was distributed, the board revised the budget to include additional expenses with an increase in assessments. Can the board adopt this revised version of the budget at the meeting, or does it need to be sent to the owners first?
A: The Condominium Property Act does not speak to this specific issue. However, an increase in expenses and assessments in the budget originally distributed to owners is a material change. In an abundance of caution, the revised proposed budget should be distributed to owners at least 25 days before the meeting at which it is to be adopted.
Note, too, that written notice of the board meeting at which the budget will be adopted needs to be mailed or delivered at least 10 and no more than 30 days before the board meeting. So, this change in the proposed budget could have a ripple effect.
• 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.