Q–Prior to our annual meeting, proxy forms were distributed to all unit owners for those who will be unable to attend the meeting. The owners may assign the proxy, sign the form, and then deliver it to their proxy holder.
Unfortunately, a substantial number of owners leave the proxy name blank, sign the form and deliver it to the condominium management office. The property manager then turns these proxies over to the association president who votes all of the signed proxies not designated to a specific proxy holder. Is this legal?
A.–The procedure is not valid if the association president is not specifically named on the proxy.
A valid election proxy must contain the name of a specific individual to vote the proxy. Section 18(a)(18) of the Illinois Condominium Property Act states that any proxy distributed for board elections by the directors must give the unit owners the opportunity to designate any person as the proxy holder.
This law means that the official proxy form distributed by the board must contain at least a blank space for the unit owner to designate a specific individual.
The intent of the law was to provide unit owners with an alternative to a director or a group of board members.
Thus, the association president may vote the proxy only if his or her name is specifically mentioned in the document as one of the choices for a proxy holder.
Q.–I live in a seven building 48-unit condominium association in the western suburbs. We are concerned about the liability of the association to repair subflooring in the units.
Many owners have experienced a breakdown of the cement-like subflooring in the second and third floor units. Since at least 1988, the association has paid for repairs to the subflooring in all rooms except the bathrooms.
A number of years ago, a board decided that the association could only repair two floors per year on a first come, first served basis. With this program, the association pays for the repairs to the subflooring, but not the owners’ floor covering.
No one has been able to find a written record which establishes this policy. It has become an increasingly difficult burden for the association and we need to know how to stop it. Has a precedent been set by making the association liable for all future repairs, or can we stop paying for these floor repairs?
A.–To resolve your dilemma, the board must determine whether the subflooring is located within the boundaries of a unit. The answer lies in the description of the units and the survey of the property showing the vertical dimensions of a unit.
From your description, it appears that the subflooring lies outside the interior portions of the residence, so that the subflooring is part of the common elements, while the floor covering has been correctly designated by the board as part of the unit for which the association is not responsible.
Section 4.1(a)(2) of the Condominium Act states that to the extent that perimeter floors are designated as the boundaries of units, all finished flooring is considered part of the unit, while all other portions beyond the flooring are part of the common elements.
Through its board of directors, the association is responsible for repairs to the common elements, while the unit owners are responsible for all repairs and decorating within the units.
The history of the flooring problem seems to indicate that a prior board tried to establish some form of compromise to limit association expenses for this defect.
If the declaration includes the subflooring area as part of the common elements, then the repairs are an expense the association will have to bear in future years. If the subflooring is considered part of the unit, regardless of past association expenses, the board is not obligated to continue this expenditure. In that case, the board may hire contractors but charge the individual owners for the repairs.
Q.–Is the Illinois Condominium Property Act and a condominium declaration one and the same item? If not, what is the difference?
A.–The Illinois Condominium Property Act is distinguished from your declaration. The statute governs the operation of all condominiums in the State of Illinois. Condominiums must comply with its requirements, which include the preparation and recording of a condominium declaration. It is the governing document for the association which first must comply with specific requirements in the act, including the rights of unit owners, and duties and powers of the board of directors.
The declaration may also contain particular discretionary rules, including the right of unit owners to lease units, keep pets, and the voting method for electing directors.
Note: The Community Associations Institute will present a seminar on The Role of Board Officers at 7 p.m. Wednesday at the LaQuinta Inn, 1415 West Dundee Rd., Arlington Heights. For more information, call (708) 231-5720.
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Mark Pearlstein, is a Chicago attorney who specializes in condominium law. Write to him c/o Condominiums, Real Estate Section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, he can’t make personal replies.
