Q — Our 33-unit north suburban condominium building, of which I am president, is struggling with balcony, ceiling and floor problems. It was built in 1976.
Over the years, 11 unit owners installed outside carpeting on their balcony floors. The carpeting has trapped water and caused damage to the balcony floors and the ceilings of the balconies below.
On professional advice, our current board had a firm remove the carpeting from the 11 units. In the course of the carpet removal, further damage was done to the concrete floors.
We think that the balconies are limited common elements and restoration to this surface is the responsibility of the association.
However, two unit owners paid to restore their own balconies last year. They now are objecting to any assessment for balcony repair work in 1997.
The board feels that these owners voluntarily paid for their own restoration work before the board determined whether further repairs were needed to other balconies. These owners should have no basis to object to a building assessment. What is your opinion?
A–The balcony owners who paid for repairs last year still are responsible for common expenses for the remaining balconies.
Before approaching the unit owners, first confirm the exact classification of the balconies under your declaration. Under Section 4.1 of the Condominium Act, balconies are classified as limited common elements unless the declaration describes these areas as solely part of the common elements.
In either case, the board of directors has the authority to determine whether balconies need repair and the charges for the repairs.
Unit owners cannot repair portions of the common elements without approval of the other directors. The two owners who made repairs on their own probably violated the terms of the declaration. They have no defense to an assessment charge by the board to repair the remaining balconies.
Q–I live in a new 12-unit condominium building. Last December, we had a meeting with the builder and the new owners. While one unit remains unsold, the remaining units all have items that need to be corrected. We held a unit owners meeting and wrote a list of the problems on a sheet of paper and mailed it to the builder. The builder never responded.
My contract specifies that within a year the corrections should be made by the builder. What should we do now?
A–Each unit owner has a one-year warranty against construction defects in the unit and common elements. This warranty requires the unit owners to notify the builder of all construction problems within the warranty period. It appears that you have satisfied this requirement by sending your letter to the builder.
With a warranty, the builder is supposed to correct the defects. If the builder ignores your letter, have the items repaired and then determine whether to sue the builder for the costs of the repairs. A lawsuit is practical, however, only if the total repair costs justify legal expenses. Remember that the owners probably aren’t entitled to attorney’s fees.
Q–To maintain our condominium complex, we hire various contractors. There is always a possibility of injury to any person performing work on the property. To prevent the condominium association from bearing the cost of such injuries, should we insist that the contractor provide a certificate of worker’s compensation insurance?
The Condominium Property Act also requires the board to make decisions by a vote at an open meeting. While you have stated that condominium boards may hold telephone votes in emergency situations or for routine matters, is it legal for the board to elect or appoint new members by telephone where the decision may not necessarily be unanimous? Should the board have held a meeting with the secretary taking minutes? Isn’t the secretary always supposed to take minutes when the board meets?
A–A condominium board should always insist that a contractor provide proof of worker’s compensation insurance. Without separate coverage by the contractor, the association is likely to be considered an employer under the Illinois Worker’s Compensation Act law, despite the fact that the injured party may not be an actual employee of the association. The association should also carry separate worker’s compensation coverage as part of its own insurance package.
The board of directors should not appoint a person to fill a vacancy by a telephone vote. This type of decision must be made during an open meeting of the board where the secretary is present to take minutes. Minutes should be taken at all gatherings of the board where members conduct business and the session is considered a board meeting under Section 1(w) of the Illinois Condominium Property Act.
Expense analysis
The Institute of Real Estate Management has announced publication of a 1997 edition of its Expense Analysis For Condominiums, Cooperatives and Planned Unit Developments. The survey is designed to assist condominium and cooperative boards, managers, and developers in tracking expenses for numerous categories. The information is organized by local, regional and national statistics, as well as building and geographical types. For further information, call IREM at 1-800-837-0706.
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Mark Pearlstein is a Chicago lawyer who specializes in condominium law. Write to him c/o Condominiums, Real Estate Section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611.
