Impact of Apathy on
Illinois Associations

© 2003 Shelley R.Z. Barnett

Nothing in Illinois law explicitly states the ramifications of the members of a not for profit corporation failing to elect a board of at least three members (and, better still, of the appropriate number specified in the corporation's bylaws). Failure to have at least the statutory minimum of three (and enough to meet the quorum requirements of the corporation's bylaws) can cripple the association.

Management and usually at least one board member try hard to influence others into serving. Generally, with at least one remaining board member, such member can appoint other members to the board until the next election (for a condominium association) or until the expiration of the term (for a homeowners association). Board members might stay past the end of their terms until new members can be elected/appointed. The concept of recompense for board members may even arise; in the event the governing documents permit it, it may be a way to get some owners to "serve". No governmental entity is going to automatically step in and make things "better" in the absence of members operating the association properly. Someone might bring an action to appoint a receiver or a board to operate the association in the circumstances. The management company may be the nominal plaintiff, as the duly appointed agent of the association. The attorney might even petition the court for authority on behalf of the association. Unit owners may also bring such a suit, although their own refusal to serve on the board may make their claim of strangled operations due to lack of a board seem disingenuous. Since one owner cannot individually comprise a board in any event, such a single owner may bring a suit without seeming as compromised in his/her position. Further, there are circumstances where an owner may not be an appropriate choice as a board member (for instance, potential or actual conflict of interest, health reasons, physical location), but such owner may be sufficiently concerned about operations as to seek court intervention to ensure the proper operation of the association.

Board members are elected for terms, and they have the right to resign.; they cannot be forced to remain "chained" to a board position. At the same time, electing board members who may be axiomatically unable to meet their fiduciary obligation to an association (due to concurrent responsibilities to another association) may result in the inability of an association to properly operate. For example, an association with all of its board members being members of a separate association's board with opposite rights/interests, might find itself ungoverned were the interested directors to recuse themselves (or might find itself defending against breach of fiduciary duty charges due to their failure to recuse themselves).

Sometimes an association needs a "cheerleader". A magnetic personality, a "can-do" attitude and some measure of good luck can help an interested person convert a few others to the cause. The cause is not the championing of a position; it is the operation of an association by diligent persons exercising reasonable business judgment in the execution of their fiduciary duties. The real threat of an inoperable association and the expenditure of its resources on court intervention can often bring reluctant, but responsible members to the directors' table.