Couples owning a single unit cannot serve on the board together

Q: We live in an almost 100-home community association. As a result of low owner involvement and a vacancy on the board, our elected secretary's husband wants to be appointed to the board. In all the statutes I have read and reviewed, it appears this practice is not permitted.

Our president has said we as a board can vote to ignore parts of statutes, such as the one pertaining to two people from the same household holding board positions. That does not sound correct, so can you give us guidance?

A: Both the Illinois Condominium Property Act and the Illinois Common Interest Community Association Act provide language that "(i)f there are multiple owners of a single unit, only one of the multiple owners shall be eligible to serve as a member of the board at any one time." The only way two of the multiple owners of a unit could both serve on the board together is if one of those unit owners owns another unit.

Moreover, there is no authority for a board to pick and choose what portions of a governing statute that it will follow. To the contrary, the Illinois appellate court has repeatedly held that a board must follow governing laws, and that failure to do so is a breach of fiduciary duty.

Q: The declaration of condominium for our association was recorded in 1977 and provides for board terms of three years. A new board member says the law limits board terms to two years each, and that we need to comply with the governing law. What does the law say about all this?

A: Section 18 (a)(11) of the Illinois Condominium Property Act provides that "no member of the board or officer shall be elected for a term of more than two years, but that officers and board members may succeed themselves." This language went into effect Jan. 1, 1978, which would have been after the declaration for your association was recorded.

The provisions of this section of the Act are applicable to all condominium instruments recorded under the Act. Any portion of a condominium instrument that contains provisions contrary to these provisions shall be void as against public policy and ineffective. Any such instrument that fails to contain the provisions required by this section shall be deemed to incorporate such provisions by operation of law.

Therefore, the term of board members for your association cannot be more than two years; not the three-year term stated in your declaration.

The association's declaration should be amended to conform to the Act regarding board terms. This might be something the board can do without owner approval, under Section 27(b) of the Act.

Q: The bylaws for our master association allow owners to vote in person or by proxy in board elections. Can the board of our master association adopt rules to prohibit the use of proxies, and to allow voting by electronic means instead, in board elections?

A: Both the Illinois Condominium Property Act and the Illinois Common Interest Community Association Act provide language that would allow the board of a condominium or common interest community association to adopt such rules. There is no similar language in the governing statute for a "master association," which is section 18.5 of the Illinois Condominium Property Act.

Hence, the master association's declaration/bylaws would need to be amended in order to accomplish this. I generally suggest amending those documents to authorize the board to adopt appropriate rules to prohibit the use of proxies, and to allow voting by electronic means instead, in board elections. If such an amendment is approved by the ownership, then the board can adopt rules to accomplish this with greater flexibility than if all the details were set forth in the amendment to the declaration/bylaws.

• 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.