Who should clean up a retention pond?
Q. I live in a condominium development that has a retention pond in the middle. This pond is full of floating and exposed debris. I contacted my condominium association about removing these items from the pond. The board responded that it created a work order to have the garbage removed from the pond. The board of my condominium then advised me that this is not its responsibility, and that I should contact the master association board. The master association has responded that this is the responsibility of my condominium association and not the master board. As a result, nothing is being done and the pond remains an eyesore for the community. What should be done here?
A. Sort of makes you wonder what "community" means here. Determining whether the condominium association or the master association is responsible for the pond should be relatively straightforward, based on the governing documents/plats of survey for each association. I would suggest that either or both associations seek a legal opinion from counsel familiar with association law.
If there is still some uncertainty, I would suggest that the boards of the condominium and the master association work together to come to an agreement on this issue. This might be accomplished via something as simple as a letter agreement, or might require an amendment to the appropriate governing documents.
Q. I reside in a small common interest community association. The three board members have been on the board for what seems like decades. No corporate formalities are followed, no tax returns are filed, board decisions seem to be made without any meetings, and the board provides no accounting as to the association's finances. Recently, the board issued a notice out of the blue that each owner needs to pay over $1,000 for a project that the contractor told me would cost less than $500 per owner. Do you have any suggestions for dealing with this?
A. This is another example of a problem where the political solution would be the most efficient and economical solution. You should consider running for the board, together with a slate of candidates, in order to take control of the board. If the problem demands more immediate action, the owners could invoke the process to remove board members and to elect new board members. However, the success of these political solutions requires the involvement of like-minded owners. Unfortunately, there are many situations where owners just don't care enough about these issues, and that environment permits these problems to flourish.
If you don't have the support of other owners to correct the problems politically, then you could consider filing suit against the board for breach of fiduciary duty. Frankly, the legal fees you would incur could be a financial burden not necessarily justified. That said, I do see an increase in suits filed by individual owners against association boards for breach of fiduciary duty. One hopes that it takes less than the fear of a lawsuit to motivate your board members to follow appropriate procedures, and to abide by the association's governing documents and the laws regarding associations.
• 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.