Formula for annual townhouse assessments seems 'unfair'

By David M. Bendoff

Q: I own a unit in a townhouse association. All owners are charged their monthly fees based on the square footage of their townhouse. I think this is grossly unfair. Why should some homeowners pay more for landscaping, snow removal or street maintenance? We have been told this formula can never be changed because the builder created the association as a condominium.

However, the board has made exceptions to this "rule." For example, the board forced all owners to pay for cable TV even though many did not want it. The board decided to not charge cable fees based on square footage but to charge the basic service equally among homeowners. If they can make this "exception," why can't they make everything else an "exception?"

A: There is a lot to unpack here, so let me tackle this as two separate issues.

It appears the developer of your townhouse units created a condominium regime by submitting the property to the Illinois Condominium Property Act.

Some developers use the square footage of units to establish the percentage of ownership in the common elements for each unit. Expenses of the association are allocated to units based on their percentage of ownership. In general, once established, percentage of ownership cannot be changed unless approved by all of the owners in the association.

This can seem unfair; however, that is the nature of the beast. The board does not have the authority to make exceptions to the manner in which assessments for expenses are allocated.

That said, the Act does provide that the board can obtain, if available and determined by the board to be in the best interests of the association, cable television or bulk high-speed internet service for all of the units of the condominium on a bulk identical service and equal cost per unit basis.

The Act also allows the board to assess and recover the expense as a common expense and, if so determined by the board, to assess each and every unit on the same equal cost per unit basis.

Therefore, the board was acting pursuant to the Act when it procured cable television on a bulk basis for all units, and when it charged the cost of the cable television to units on an equal per unit basis rather than based on percentage of ownership. The board was not making an "exception" on its own, but rather in accordance with the Act.

Q: The president of our association, on his own, created and appointed members of the association to a landscaping commission. The purpose of the commission is to obtain proposals for landscape maintenance services, and to make a suggestion to the board. Did the president have this authority?

A: The president did not have this authority on his or her own. Under the general not for profit corporation act, the board can create and appoint people to a commission, advisory body or such other body. A commission needs to be established by the board, at a board meeting.

Similarly, the appointment of the people to serve on the commission, and the chair of the commission, needs to occur at a board meeting. The purpose for which the commission is created should be set forth in a charter, and approved by the board at a board meeting.

A commission can make recommendations to the board. However, only the board can take action with respect to recommendations made by a commission. In this regard, a commission is essentially an information gathering body, providing the board with data that it will consider in making a decision. Commissions are often used, for example, to conduct searches for property managers, vendors like landscapers, roofers, and other vendors, and to prepare suggested rules.

None of the appointees to commissions have to be members of the board. So, a commission can be composed entirely of non-board members.

• 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.