Enforcement of Covenants and RulesA. There are no agencies of government or other groups to oversee the operations of associations. If laws are being broken, it is possible that the Attorney General's office would become involved, but this is unlikely. Unfortunately for unit owners, the only recourse they have is to exercise their vote and take control of the board or resort to the courts.
A. First, it is quite probable that the transfer under the trust document triggered certain provisions of the declaration and by-laws which give the association rights not only to information about your identity and the occupancy and ownership of the unit, but perhaps even a right of first refusal with respect to the transfer. Second, the fact that you have taken the benefit of your legacy under the trust does not mean that you do so without being obligated to respect all of the restrictions and requirements of the governing documents of the association. Ignorance of the rules is no excuse, similar to the fact that ignorance of the law is no excuse. When you attend the hearing, which is a good idea, you might present your circumstances to the board at that time; don’t be surprised to still be faced with a fine or other action depending on the violations that you’ve committed. The board has a fiduciary responsibility to enforce the governing documents, and the fact that one owner or another failed to familiarize him or herself with those governing documents does not preclude the restrictions’ applicability.
A. Covenant restrictions are not applicable to publicly dedicated streets. The local municipality's laws would govern the use of the public ways. Association private covenants can place greater restrictions than a unit of government could place because the Constitutional guarantees do not apply to private entities, but local and state laws are not superseded by covenants. It may be reasonable for the covenants to limit or restrict soliciting to the unit owners. There are no laws that require an association to permit solicitors. (It should be noted, however, that rules and regulations passed by an Illinois board may not violate first amendment activities).
A. The board must enforce the bylaw's restriction against pets. If you feel a need or desire to keep pets, then you should move into an association that permits them. In this case, the other unit owners have relied upon the bylaws restriction against pets and they correctly expect the restriction to be uniformly applied. It would be unreasonable for other unit owners to remove their pets (or refrain from getting a pet) while you are permitted to flagrantly violate the rule. However, if the pet is required to accommodate a disability (such as a trained dog to guide visually impaired residents), the board must allow it.
Voting Rights/ElectionsA. The Condominium Property Act does not prohibit or require condominium rentals. The law is silent on the subject. Association covenants can restrict or prohibit leasing. Unless the covenants are amended to specifically prohibit non-resident owners, then the unit can be rented or occupied by any person. If the board exercises a valid first option to buy a unit (following the procedures in the declaration), then the board could refuse to sell the unit to anyone who does not intend to live there.
A. Although the Condominium Property Act requires that a proxy issued by the board give an opportunity to an owner to express his or her preference for the known candidates of the board, the law does not specify whether the unit owner's choice is binding upon the proxy holder. This question is an area of disagreement among condominium law practitioners. Some believe that the expressed choices are not binding because an "expression of preference" is only an indication of the unit owner's preference and not a formal direction to vote. Otherwise, the proxy is more of an absentee ballot hybrid. Others believe that the designations are binding. Until the law is clarified, an association will likely take whichever position it prefers and/or its attorney opines is correct. Whichever position it takes, it should consistently apply the decision. One may analyze the situation by remembering that one reasons for a proxy vote rather than an absentee balloting is that circumstances and issues can arise during a meeting that may not have been anticipated by the unit owner providing the proxy (including new persons proffering themselves for election that very evening). The proxy holder is trusted to exercise discretion in his/her voting. On the other hand, one may argue quite forcefully that the proxy holder has a duty to abide by the directions of the grantor of the proxy (essentially on a principal/agency theory), and that the proxy holder should not be allowed to stray from those directions.
A. The proxy holder should be issued a ballot, just the same as unit owners voting in person, and the proxy holder should vote a ballot for each unit that he or she is authorized to serve as proxy. Once voting has been closed and the ballots have been collected, no one may vote late or change their votes during counting.
A. As long as the covenants of a homeowners association authorizes proxy voting, and as long as the developer has voting rights, there is nothing the owners can do to prevent the developer from appointing the board as its proxy. Although it is probably not in the best interests of the Association for the board to become entrenched by continually re-electing itself, under the circumstances it does not appear that the owners would have legal recourse.
A. This question underscores the need to properly set up a condominium in the first place to have an odd number of members. When there is an even number of members, it will eventually occur that the board will become deadlocked. For the board to take action, it must be approved by a majority of the members present (provided that a quorum is present). If there is a tie vote, then the motion is not carried and no action can take place. If a deadlock on all or most issues cannot be broken so that there is the threat that the board will be unable to carry out its business for a length of time, it may become necessary to seek court supervision of the condominium. The court has broad powers to take control or even to dissolve a corporation that ceases to function properly. The best solution is to avoid the problem altogether by changing the bylaws to allow for an odd number of board members.
Defenses to CollectionsCan a director provide his/her proxy to another for voting at a board meeting?
A. Illinois condominium law does not provide for proxy voting by directors. As an aside, there is an amendment that has passed the Illinois legislature and would become law upon signature of the Governor regarding proxy voting by owners (for owners meetings) versus absentee voting (new under the anticipated provision). Information about this can be found in the "What's New" section of the website. Each state's law may vary, and it is important that boards ascertain the nature of the laws in governing their associations.
A. Illinois law does not provide that you can raise a defense of non-provision of heat (or anything else that is not “germane” to the matter at hand) in a Forcible Entry and Detainer action. In Illinois, associations can collect through use of this “eviction” type lawsuit, obtain a judgment against you and your unit, and satisfy it by evicting you, putting a tenant in the unit and recovering monies from the tenant. There are very limited defenses to this type of action.
In the event of a lien foreclosure suit, there may be a bit more leeway with respect to the defenses that are available, but, again, courts do not generally consider failure to provide certain common services as a defense to failure to make assessment payments.
A. Expenses constantly go up and boards have the fiduciary obligation of meeting those expenses. Boards also have the obligation of repairing, maintaining and replacing common elements at the Association, which requires a lot of planning, a lot of budgeting, and a lot of collecting of assessments; it also often requires both separate assessments and bank loans. The best planning on the part of the association will simply result in accurate budgeting for regular assessments and a buildup of reserves sufficient over time to address problems as they arise at the association. In most associations, the boards have the ability to assess as necessary to meet expenses. State laws vary on these issues. In Illinois, for example, a condominium board can enact whatever assessments are necessary with respect to repair, maintenance or replacement of the common elements. In instances of the total of the regular and separate assessments for the current year being more than 15% higher than (115% of) the prior year’s total of regular and separate assessments, within fourteen days of the board action to enact the assessment at issue, 20% of the unit owners can submit a petition to the board which must call a meeting of the unit owners within 30 days. At that time, in the event over 50% of the total percentage ownership interest at the association (not just at the meeting) votes against the assessment at issue, it is rejected. Please note, when owners reject assessments, they are likely putting the association in a position of not being able to perform repairs, maintenance or replacement that is necessary, and they may be undermining the value of their property. In other types of associations (non-condos), limits within a governing document may control the board’s abilities as to respect to assessments. Even in Illinois, were the condo assessment increase to result in an improvement rather than simply repair, maintenance and replacement, then limits that may exist in governing documents of the association will apply (they are otherwise nullified). This is another of those areas that is both very fact-specific and state law-specific.
A. Presuming that the roof is a common roof, and not one that is exclusively within your control, or even owned by you, they can do a lot of things. They can cause the satellite dish to be removed and charge back the expenses of all repairs to your unit. They can also fine you for violating whatever rules they had with respect to not affixing satellite dishes to the roof. You can only affix the small dish at an area over which you have exclusive control. Even though your unit and your exclusive use common elements (limited common elements) may not face in the right direction to get a good signal, you have no excuse for placing and no right to place a satellite dish in an area outside your exclusive use.