Q-When an existing factory space was being converted into loft spaces for a condominium project, I signed up.
During the sales negotiations, I was informed that a workout room would be included, which was featured in the promotional folder from the salesperson.
However, there was no mention of the workout room in my sales contract.
You guessed it, a year later when the loft was completed, there was no sign of a workout room.
The developer said he wasn’t responsible for this amenity because it wasn’t included in my signed contract.
There also was a discrepancy in the square footage of the loft. I was told the loft would have over 800 square feet. My lender’s appraiser and an engineer I hired for the pre-closing inspection figured that the unit had a little over 800 square feet.
The developer contends that the balcony and patio space was included in the square footage and, of course, the developer measured square footage from the outside wall, not the inside area, the way my appraiser and the engineer had done.
When I attempted to get out of the contract on the basis of these discrepancies, I was unable to do so.
How could I have protected myself better?
A lawyer reviewed the contract from me, but how could these events have been predicted? Do you have any advice for future buyers?
A-The right of a real estate purchaser to rescind or terminate the contract is based on whether the seller makes a material misrepresentation.
A particular item is considered a material factor if it was a key element in your decision to purchase the unit.
If amenities like a workout room or the particular amount of living space were this important, they should be designated as material factors in your contract.
If the developer represented the workout room as an amenity for the association, the board of directors has the legal right to seek reimbursement from the developer for the association’s cost to install this facility.
The board has the legal standing under section 9.1(b) of the Illinois Condomium Property Act to act on behalf of all the owners and receive compensation for the workout room which should have been constructed by the developer to benefit all the residents.
The size issue of your unit depends on whether you are comparing square feet of actual living space.
The designation of living space could be specified in the unit, but the difference between the square footage represented by the developer and the space “figured” by your consultants doesn’t appear to be a material difference to permit a rescission of this contract.
Q-Does the Illinois Not-For-Profit Corporation Act overrule the declaration of our townhome association?
We have a board that is ignoring the law in order to promote the members’ own goals.
The president of the association also wants the power to contact attorneys without board approval.
Is this permissible?
Things have gotten so severe that some owners want to impeach these board members. How would we go about this, and can the homeowners fill the vacancies with replacements without an election?
A-The Illinois Not-For-Profit Corporation Act does not overrule a contrary provision in your declaration, regardless of whether you live in a condominium or homeowners association.
This statute would apply to situations to the extent they aren’t covered by your declaration.
The association president doesn’t have the authority to consult with legal counsel without board approval.
The board, as a group, has the power to retain counsel, and the directors may instruct the president to contact the attorney on a particular matter, or give this officer blanket authority to deal with the attorney.
However, the president cannot incur legal expenses without some prior authority from the board.
Your association declaration and by-laws will specify the means to remove directors by unit owner vote.
To impeach the board members, unit owners must call a special meeting to vote for removal of the directors.
The owners also must conduct an election for the successor directors who serve at the same salary.
Most condominium declarations require a two-thirds vote of the total ownership to remove a director, but you will have to review your declaration.
– The Illinois Chapter of the Community Associations Institute will hold a seminar on budgets and reserves Saturday, June 17, from 9 a.m. to 11:30 a.m. at the Holiday Inn Naperville. For registration and information, call 708-924-7772.
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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. Sorry, he can’t make personal replies.
