Residents cannot form a commission
Q. Can the owners in our association create commissions?
A. A commission is an advisory body that can make recommendations to the association board. The board, not the unit owners, can create and appoint people to a commission, advisory body or such other body. A commission needs to be established by the board, at a board meeting. Similarly, the appointment of the persons to serve on the commission, and the chair of the commission, needs to occur at a board meeting.
Q. No one had a list of owners at the annual meeting of our association? Is this an issue?
A. A master list of owners in the association should absolutely be among the documents that are present at the annual meeting. The board, the managing agent, or election inspectors should be responsible for distributing ballots to the members or their proxies, based on an official list of unit owners.
Q. Who can call board meetings and owner meetings in a common interest community?
A. This is governed by Section 1-40(b)(3) of the Illinois Common Interest Community Association Act. Special meetings of the board may be called by the president, by 25 percent of the members of the board, or by any other method that is prescribed in the community instruments. Special meetings of the membership may be called by the president, the board, 20 percent of the membership, or any other method that is prescribed in the community instruments.
"Community instruments" refers to the declaration, bylaws and, notably, the rules and regulations, as well. Therefore, all of these documents would have to be reviewed to determine if some other method is provided for to call meetings, in addition to the methods set forth in the Act.
Q. Would you please detail which sections of the Illinois Common Interest Community Association Act discuss the financial documents that an owner is allowed to request from the board of the association.
A. Section 1-30(i) of the Illinois Common Interest Community Association Act governs the books and records that a board must maintain for examination and copying by owners in a common interest community.
With respect to financial records, subsection (ii) provides that "Detailed and accurate records in chronological order of the receipts and expenditures affecting the common areas, specifying and itemizing the maintenance and repair expenses of the common areas and any other expenses incurred, and copies of all contracts, leases or other agreements entered into by the board, shall be maintained."
In addition, subsection (v) provides that "with a written statement of a proper purpose, such other records of the board as are available for inspection by members of a not-for-profit corporation pursuant to Section 107.75 of the General Not For Profit Corporation Act of 1986 shall be maintained."
Do note that a reasonable fee may be charged by the board for the cost of retrieving and copying records properly requested.
Q. The covenants for our association prohibit raising or keeping "poultry" on the property. The ordinances for our town do permit keeping limited number of chickens on residential property. Can the board grant a waiver to permit owners to keep a few chickens?
A. Initially, private covenants can be more restrictive than a local ordinance. Pursuant to Illinois appellate level case law, the board of directors of Illinois community associations have a fiduciary duty to abide by and enforce the covenants set forth in a declaration of covenants. There is no authority of the board to waive the covenant in question, and to do so exposes the board to a claim of breach of fiduciary duty. The declaration would have to be amended to permit chickens to be kept on the property.
• 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.