Board members must be listed on the deed to serve

Q. There is a board member who is not on the deed of any unit in our condominium association. Her husband is the sole owner on the deed to the unit. Can this nontitle-holding spouse of the unit owner be on the condominium board?

A. The short answer is "no." There are many condominium declarations that provide that the spouse of an owner of a unit can serve on the board. However, this is contrary to Section 18(a)(1) of the Illinois Condominium Property Act. That section of the Act provides that the board members are elected from "among the unit owners." As such, the spouse of the unit owner who is not on the deed to the unit, and not an owner, is not eligible to serve on the board.

In this situation, the owner could convey, by recorded deed, a small interest in the unit to his spouse. The spouse would then be eligible to serve on the board.

Q. I am a board member for our association. I have a strong opinion that action that our board is about to approve is not proper. I will vote against the matter when it comes up. Is there anything else I should do to document my position on this matter?

A. This is addressed in Section 108.65(b) of the Illinois General Not for Profit Corporation Act. This would be applicable to any condominium association, and any other association that is incorporated as a not-for-profit corporation.

That section provides that a director of a corporation who is present at a meeting of its board of directors at which action on any corporate matter is taken is conclusively presumed to have assented to the action taken unless he or she takes certain specific action. The board member's dissent to board action must be entered in the minutes of the meeting. Alternatively, the board member must file his or her written dissent to such action with the person acting as the secretary of the meeting before the adjournment of the meeting, or must forward such dissent or abstention by registered or certified mail to the secretary of the corporation immediately after the adjournment of the meeting. Note further that such right to dissent or abstain does not apply to a director who voted in favor of such action.

A dissent is typically issued by a board member who believes that proposed corporate action is illegal. to avoid personal liability for board action.

Q. The declaration for our condominium requires all board members to reside on the property. One of the owners who leases his unit is running for the board. Since he does not reside on the property, is he eligible to run for the board?

A. The requirement in the declaration that all board members reside on the property is not valid and not enforceable.

Per an amendment to Section 18(a)(1) of the Condominium Property Act - "A declaration first submitting property to the provisions of this Act, ..., or an amendment to the condominium instruments adopted in accordance with Section 27 ... may provide that a majority of the board of managers, or such lesser number as may be specified in the declaration, must be comprised of unit owners occupying their unit as their primary residence; provided that the condominium instruments may not require that more than a majority of the board shall be comprised of unit owners who occupy their unit as their principal residence" - the association's declaration would have to be amended to provide that a majority of the board, or such lesser number, must be comprised of owners who occupy their unit as their primary residence.

• 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.