Q–Before our yearly elections, the board sends out proxy forms that do not have the names of any candidates. It also requires that the proxies be turned in by a specific date.
Does the board have the right to set a deadline for a homeowner to submit his or her candidacy for a position on the board? Does the board have the right to set a deadline for turning in proxies?
Can a homeowner who has not submitted his candidacy to the board before the election date turn in proxies on the day of the election from homeowners who wish to vote for him or her?
Why aren’t proxies written more understandably? Even our government ballots have boxes next to the names of the candidates, as well as a space for write-in votes.
Can owners draw up their own proxy forms indicating their choice of candidates?
A–A condo association proxy should have the names of owners who have announced their candidacy. Section 18(a)(18) of the Illinois Condominium Property Act states that any proxy distributed by the board for elections must give unit owners the opportunity to designate any person as the proxy holder and to express a preference for any other known candidates or to write in a name.
This means those who have announced their candidacy should be recognized on the proxy. The board can set a deadline for owners to announce their candidacy only for purposes of placing names on preprinted proxies and ballots.
The board should allow individuals to submit proxies given to them by unit owners during the voting of ballots at the election. An owner who has not submitted his candidacy before the election date may deliver proxies from owners who wish to vote for that individual.
Because the Condominium Act allows write-in votes, proxies and ballots designating the unannounced candidate are essentially write-in votes.
Don’t confuse the proxy voting process with an absentee ballot. A proxy is an assignment of a right to vote. The owner gives a person the right to appear at the election and vote for the owner.
All those who vote, including the holders of proxies, must cast a ballot. An absentee ballot eliminates the need for a proxy. However, absentee voting is not permissible unless the bylaws are amended to provide this mechanism.
Owners can draw up their own proxy forms. Section 18(b)(9) of the condo law only requires that owners execute and date the form.
Given the paltry rate of compensation and long hours condominium directors serve in their jobs, one wonders why so many boards create obstacles for individuals to run for office and vote.
Q–We are a small independently managed condominium association that is part of a larger complex in the northwest suburbs. The complex has a master association, plus a town home and condominium association.
Our community has recently been confronted with notification from the master association board of directors that there will be a significant increase in master board assessments.
This increase is the result of legal expenses from a lawsuit filed by the town home association against the master board. The suit arose from an election dispute over the manner in which delegates cast their votes for one of the member associations.
Meanwhile, our board has advised the owners that there will also be a significant increase in our assessments to pay for new siding, doors and windows.
These assessment increases are called “bill backs” and “further assessments,” and the owners are not allowed to vote on these increases.
Can you explain the difference between a “bill back,” a “further assessment” and a “special assessment”? When do homeowners get to vote?
A–I am not familiar with the term “bill back,” but assume it applies to charges to unit owners for particular expenses incurred by the board.
A further assessment is a term often found in declarations that refers to a special assessment. A special assessment is defined in Section 18(a)(8) of the Illinois Condominium Property Act as any common expense not contained in the annual budget or any increase in assessments over the amount adopted in the annual budget which shall be “separately assessed” against all unit owners.
Condominium unit owners do not have the right to approve special assessments unless the charge will cause assessments to increase more than 15 percent over assessments for the prior year; or the expenditure relates to an addition or alteration of the property that was not included in the annual budget.
Your situation illustrates the true effect of intercommunity disputes. By incurring large legal fees for an election matter, your fellow unit owners will have more difficulty paying for important items such as new siding, doors and windows.
This is the best reason for the master board and the town home association to resolve differences.
Q–Our condominium in a northwest suburb has an outdoor swimming pool for use by the owners and their guests. We have rules for use of the pool, one of which is that no floating devices may be used in the water.
Some of our handicapped residents and senior citizens would like to use a long tubular floating device known as a “fun noodle” while in the pool.
Are we discriminating against them by not letting them use this floatation device? It seems that we would have to let everyone use the device if we permit the use for a particular group.
Where can we get some information to resolve this situation?
A–If any resident is physically handicapped, the Fair Housing Amendments Act states that a condo board shall not adopt rules that impair the use of the common elements by a handicapped person.
The swimming pool is part of the common elements. If the devices will assist someone in using the pool, they should be allowed. The board should reconsider the ban on floating devices.
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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, 4th floor, 435 N. Michigan Ave., Chicago, IL 60611. Sorry, he can’t make personal replies.
