Q-I moved into a new condominium a few months ago, and our board members have been having secret meetings. I am wondering if this is legal. Unit owners have only been notified of one meeting since the building was turned over to them in June.
Also, is it legal for a builder to sell any part of the common elements, such as a janitor storage space, to a unit owner?
A-Board meetings must be open and called upon notice to the unit owners at least 48 hours prior to the meeting. A condominium board must meet at least four times per year, but a newly formed unit owner board should meet at least monthly.
If you have not received notices of the board meetings, the board has failed to comply with legal notice requirements. While the board may have held the required number of meetings, a new unit owner board cannot effectively operate by meeting only four times per year.
The builder cannot convey the janitor space and, thus, eliminate the area from the common elements without unit owner approval to amend the declaration.
To remove the janitor space from the common elements, the declaration must be amended to revise the description of the common area and change the survey of the declaration.
In a 1982 decision, the First Illinois Appellate Court held in St. Francis Court Condominium Association vs. The Investors Real Estate that a developer could not remove and convert part of the common element basement area for duplex units without three-fourths unit approval to amend the declaration.
Similarly, your developer cannot eliminate the storage area from the common elements without the required owner approval.
Q-Our association has separate electrical meters for each unit, but charges for water and gas are common expenses. In reviewing our association’s utility costs, the board found that the association pays approximately sixty cents less per kilowatt hour than the unit owners.
Can the board eliminate unit electrical meters and make electricity a common expense?
A-The utility expense conversion probably would require an amendment to the condominium declaration which must be adopted by the required number of owners needed to change your document.
The Illinois Condominium Property Act states in Section 9(c)(1) that the board prepare an annual budget which sets forth all anticipated common expenses. In preparing the budget, the board must follow the description of common expenses stated in the declaration and bylaws.
To change the list of common expenses would require an amendment to the description of such expenses.
If the owners approve the amendment, management would advise the electric utility to bill the association directly so, presumably, the individual meters would be deactivated.
Q-Our former board president said that we must change the name of our committees to commissions because it is required by Illinois condominium law. This appears to be inconsistent with the definition of these terms in Webster’s Dictionary.
Does the board have the option to name these groups by either name?
A-The former president is referring to the Illinois General Not-For-Profit Corporation Act which distinguishes between committees and commissions.
Section 18.3 of the Illinois Condominium Property Act states that the Not-For-Profit Act applies to the extent it is not inconsistent with the Condominium Act or a condominium declaration.
The Condominium Act and most condominium declarations do not discuss the subject of committees. Since most condominium boards appoint committees, the board should rely on the Not-For-Profit Act definition of a committee as a group of at least two directors which is appointed by the board and may have authority to act for the board in certain matters.
A commission does not have to include directors and merely acts as an advisor to the board.
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Mark Pearlstein, is a Chicago attorney who specializes in condominium law. Write to him c/o Condo Log, Real Estate Section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611.
