Q–Our condo building is roiled in controvery because of a plan to charge each unit on a more proportional basis, instead of a single monthly assessment where all units pay the same amount regardless of size.
The building began with a flat-rate assessment plan because it was assumed that all the units would be using the common elements equally.
However, some unit owners are demanding a more proportionate charge per unit, particularly because some units are twice the size of others.
What would be required to change the assessment level and what is the process needed to accomplish this change?
In an official mailing to the owners, can the board of directors conduct an opinion survey for a project? Would it be better to request a vote of unit owners?
(It is worth noting that nonresident owners in the past haven’t responded to management surveys or requests.)
Can a survey be conducted via registered mail to assure that these owners receive and return the survey? If owners do not return surveys, can the board substitute its vote for those who do not respond?
A–The only means for changing the monthly assessment is by unanimous consent of the unit owners.
Under Section 4(e) of the Illinois Condominium Property Act, the percentages of ownership, which serve as the basis for collecting assessments, may only be changed by unanimous consent.
Depending upon the language of your declaration, this change can be made at a meeting or by circulating a document to obtain written approval.
An opinion survey has no legal effect, but may be done by the board to try to learn the attitudes of unit owners regarding future expenditures.
Under the condominium law, the board of directors makes the final decision on assessment increases or project expenditures. Unit owners have certain rights to request a vote on these decisions.
The board can determine, for its own purposes, the requisite level of approval it wants from unit owners to proceed with the project. If, however, an expense is needed to maintain a deteriorated portion of the common area, the board is compelled to proceed with the work, regardless of unit owner approval.
If the board takes the time to solicit input from the owners, those who don’t respond cannot later complain that the board is ignoring them.
The lack of response from non-resident owners means that these members will either leave spending decisions to the board or don’t have sufficient concern to reply. You can’t force owners to respond to a survey.
Q–We bought a condominium in a 36-unit building when it was still controlled by the builder.
After moving into my unit, I found out that the contractor was using assessment money for repairs to the common elements.
How long is the builder responsible for the common areas? Is it one year after all units are sold or is there another cutoff date?
A–Until 75 percent of the units are sold and the developer holds a turnover meeting to transfer control of the board to the unit owners, the developer acts as the board of directors.
The developer board may use assessment monies to maintain common areas. However, the developer cannot use assessment monies to complete construction of the building.
Thus, in reviewing the expenditures of the developer, the first unit-owner board must distinguish between expenses for common area maintenance and expenses to complete the construction work in the building.
The developer surrenders control of the board at the turnover meeting. From that point, the board elected by the unit owners is responsible for maintenance of the common elements.
Q–Large cracks appear in the ceiling in three rooms of my condominium directly beneath the area where my upstairs neighbor’s radiators stand. While I told my neighbor that her radiators were leaking, she told me that the radiators are turned off and she hasn’t seen any dampness or wet spots on the floor next to them.
It is my understanding that radiator valves can leak even if the radiators are turned off.
I would like to get my ceilings repaired and painted, but I am concerned that the cracks will simply reappear unless the radiators are checked and repaired.
If my neighbor’s radiators are the cause of the damage, is she responsible for the repairs? What recourse do I have if she refused to accept responsibility for this damage?
A–If your neighbor’s radiators are the cause of the damage, she is responsible for the repair cost. Section 9.1 of the Illinois Condominium Property Act makes a unit owner responsible for any damage arising from the operation of his or her unit.
If you and your neighbor are at an impasse regarding the cause of this damage, ask the board to hire an outside party to inspect the radiators and determine whether they are the cause of the water infiltration into the common element areas between the two units and into your own residence.
Condominium declarations provide that a unit owner must repair anything in a unit that is causing damage to another residence or the common elements.
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Mark Pearlstein is a Chicago lawyer who specializes in condominium law. Write to him c/o Condominiums, Real Estate News Section, 4th floor, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, he can’t make personal replies.
