Q. One of the board members of our association lives in another part of the state and seldom attends board meetings. Can we amend the declaration to require that a person needs to reside on the property to be elected to and serve on the board?
A. In my view, a board member residency requirement would violate Section 18(a)(1) of the Illinois Condominium Property Act because it would not allow board members to be elected at large, but rather would limit the pool of candidates/board members to residents (not owners). The residency requirement, in my view, would also violate Section 18(b)(2) of the Act because it would create two classes of owners -- resident owners who could be elected to the board and nonresident owners who could not be elected. That said, there is no reported Illinois case law on the issue.
Note, too, that geographic location of a board member should not be a barrier to participation in board meetings. The Act provides that board members may participate in and act at any meeting of the board of managers in person, by telephonic means, or by use of any acceptable technological means whereby all people participating in the meeting can communicate with each other. Such participation constitutes attendance and presence in person at a meeting. A simple speaker phone set up at the board meeting can permit the "absent" board member to attend and participate in the meeting.
Q. Our condominium association has used the percentages of ownership interest in common elements set forth in the proposed declaration of condominium, which was included in the Property Report distributed by the developer to prospective purchasers. Recently, the association obtained recorded copies of the association's declaration of condominium. The percentages of ownership interest in the recorded declaration are different from those percentages set forth in the copy attached to the Property Report. Which percentages of ownership is the association required to use?
A. In Illinois, a developer is required to provide prospective purchasers with a Property Report. The report must include the "proposed" declaration of condominium. However, only the declaration of condominium, and any amendments thereto, recorded in the county Recorder of Deeds office govern the association.
Accordingly, the correct percentages of ownership in the common elements for the individual units are those contained in the version of the association's declaration of condominium recorded with the county.
Q. Our condominium association includes both residential units and parking units. The original declaration states that no more than 20 percent of the "units" can be leased at any one time. Does this refer to 20 percent of just the "residential units" or 20 percent of the total number of residential units and parking units? We are hoping the former!
A. As drafted, the reference to 20 percent of the "units" would be the total number of both residential and parking units. With some very careful and creative drafting of an amendment to the declaration, the association might be able to have the cap on the number of units that can be leased apply to only "residential units."
• 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.