Q. There is a large river birch tree on the property next to our condominium association. The tree is almost on the boundary between the association and this neighboring person's land. During a recent storm, the weight of snow and ice caused a branch to droop over our condominium building. The branch eventually caused substantial damage to the gutter and downspout. The snow and ice melted, and the branch has returned to close to its normal location. However, there does appear to be a crack in the branch. The board is concerned the branch could snap from the tree and do further damage to our building. The owner of the adjacent property has been spoken to about this, but refuses to have the offending branch removed. Luckily, the tree is near a remote portion of the building where it can't hurt a person. What can the association do about this?
A. These tree issues come up quite a bit. The association has rights and remedies if tree branches from adjacent private property are encroaching on the association's property and causing a dangerous condition. The association should make a written demand to the neighboring owner here to remove the branch by a certain date. If the adjacent land owner does not remove the offending tree branch, after a written demand, the association may be able to trim the tree on its own and seek reimbursement from the tree owner.
As an alternative to this "self-help" remedy, if the adjacent land owner fails to comply, the association could file suit to require the owner to trim the encroaching trees at the tree owner's expense.
If the branch does fall and damages the association's property, the association should also speak with its insurance agent or broker about whether a claim should be made with the association's insurance carrier. This may also depend on the cost to repair the damage and the amount of the association's insurance deductible.
Q. Our association has a dispute with a painting contractor. The contractor was retained to paint the lobby entrances to the individual buildings in our association. The board has an issue with the quality of the work in some of the lobby entrances; while other lobby entrance painting work is acceptable. The painter has submitted an invoice for all the work. Can the association withhold payment to the contractor until all the work is acceptable to the board of the association?
A. Affecting associations of more than 12 units, the Illinois Prompt Payment Act provides that if a contractor has performed in accordance with the provisions of a construction contract (for design, construction, alteration, improvement or repair) and if the payment application has been approved by the association or the association's agent, the association must pay the amount due to the contractor pursuant to the payment application not more than 15 calendar days after the approval.
Moreover, the payment application is deemed approved 25 days after the association receives it, unless the association provides, before the end of the 25-day period, a written statement to the contractor of the amount withheld and the reason for withholding payment.
The bottom line here is that if the association finds that a portion of the work is not in accordance with the contract, payment may be withheld for the reasonable value of that portion of the work only. However, the association must provide timely written notice to the contractor as described above. Payment must still be made for any portion of the contract for which the work has been performed in accordance with the provisions of the contract.
• 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.