Can a condo association do away with proxies?
Q: Our condominium association board is looking at adopting an "anti-harassment" rule. The rule would prohibit an owner from contacting any other owners to solicit proxies for the board election. Can they do this?
A: Under Section 18(b)(9) of the Illinois Condominium Property Act, a board can adopt a rule that provides unit owners may not vote by proxy in board elections, but may vote only (i) by submitting an association-issued ballot in person at the election meeting or (ii) by submitting an association-issued ballot to the association or its designated agent by mail or other means of delivery specified in the declaration, bylaws or rule.
Similarly, the board can adopt a rule that provides unit owners may not vote by proxy in board elections, but may vote only (i) by submitting an association-issued ballot in person at the election meeting; or (ii) by any acceptable technological means (email, etc.) as defined in Section 2 of the Act.
If the board adopts such a rule, then proxies would not be allowed, and any proxy would be of no legal effect at the annual meeting.
However, as long as owners in the association are permitted to vote via proxy, a rule that prohibits contacting owners to solicit their proxy would likely be invalid under Section 18.4(h) of the Act and case law regarding first amendment rights of owners.
Q: For how long should our condominium association retain ballots and proxies for elections?
A: Section 19(a)(8) of the Condominium Property Act requires the association to maintain, for examination and copying by owners, "ballots and proxies related to ballots for all matters voted on by the members of the association during the immediately preceding 12 months, including, but not limited to, the election of members of the board of managers."
That said, it may be a good idea to keep such records at least until the end of the terms of the board members elected at any annual meeting.
Note, too, that Section 19 of the Act addresses numerous categories of books and records, and the minimum duration that many such records need to be maintained by the association for examination and copying by owners.
Q: Our condominium board has historically been advised that the reserve study did not need to be provided to owners. Recently, an owner who was denied a copy of the reserve study threatened to file suit to obtain a copy. Has the law changed?
A: Section 19(a) of the Illinois Condominium Property Act was amended, effective Jan. 1 of this year, to add "any reserve study" to the list of books and records to be made available to owners for examination and copying. This change was made to coincide with changes to the FNMA Secondary Mortgage Market Guidelines that require submittal of a reserve study in connection with a unit purchase or refinance loan.
Q: How are storage lockers assigned in a condominium?
A: How storage lockers are assigned is going to be a function of the language in the particular association's declaration of condominium.
In some instances, storage lockers are limited common elements to be assigned to a unit by the developer. The assignment would be permanent unless the storage locker is transferred by the owner of the unit assigned the storage locker to another unit, by way of appropriate amendment to the declaration. The limited common element storage locker would automatically transfer with the sale of the unit to which it is assigned.
In other instances, storage lockers are general common elements to be assigned to a unit by the board. Such assignments could be changed from time to time, and the use of the storage locker would not automatically transfer to the purchaser of the unit to which it is assigned.
• 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.