Q. Our condominium association in the northern suburbs consists of 175 condos and townhouses. We had our annual meeting and the election of the directors last month. We have a five-member board with the terms of three members ending this year. Five owners had announced their candidacy for these three positions.
Based upon an announcement of the annual meeting from our managing agent, proxies were not issued, and the ballot did not contain the name of the owner, but only listed the unit percentage of ownership. The notice stated that this was a secret ballot and instructed the owner to return the ballot in an enclosed, pre-addressed envelope to the property manager by noon of the date of the election. Ballots were counted before the meeting began.
This notice reminded the owners that cumulative voting was permitted, but described the process as one in which the owners may have four votes, one for each position available, or the owners could divide their votes among four candidates. The notice concluded that refreshments would be served, so we should mark our calendar.
Is this notice correct? We understand from the manager that one of the incumbent board members, who happens to be the president, intends to resign and will not complete the second year of his two-year term.
Is the notice correct, or is our election process flawed? Should owners have been advised that the president intends to resign one year following the election?
A. The only accurate statement in the election notice was that refreshments would be served.
The board of directors cannot eliminate proxy voting if the election took place before Jan. 1, 2004. For cumulative voting, owners may multiply their vote by the number of positions to fill, which in this case is three, rather than four directors. Candidates or their representatives were not given the right to be present during the vote count.
Section 18(b)(9)(A) of the Illinois Condominium Property Act permits an owner to vote in person or by proxy. Before Jan. 1, owners could vote by an absentee ballot only if their by-laws permitted this method. Most do not. After Jan. 1, associations can vote by absentee ballot, adopted by board rule or declaration amendment.
Based upon the Not-for-Profit Corporation Act, cumulative voting allows members to multiply their votes by the number of open positions. Your association had three open positions rather than four.
Section 18(b)(10) of the Condominium Act provides that a candidate or his or her representative may be present at the ballot counting.
The anticipated resignation of the president was not relevant to the election process. There were sufficient defects in the notice and procedures to warrant a new election.
Q. I sold my condominium more than a year ago. The day before closing the sale, I discovered that the board levied a special assessment on each unit to pay for an architectural study and repairs on damaged balconies. The amount was unknown at the time of the closing. I had to set aside a relatively large sum of money in an escrow account so the new owner could pay this special assessment. The escrow agreement requires the money to remain in the escrow account for three years from the date of the closing or until the work on the balconies is finished. I have tried to contact the current owner to get updates on the work process, but she does not respond to my requests.
Because I still have monetary ties to this condo, do I have a right to get updates on the balcony work? If so, do I contact the condo management company or the condo board?
A. Your escrow should have been tied to the date the payment was due for the special assessment, rather than the completion date of the work. Contact the managing agent for information on the work.
At most, the escrow should remain open for one year.
Q. I live in a 22-unit building. As of this year, we have 20 parking spaces. There is room to create two more spaces, so each owner may have a space, but to do so will mean that two rows of parking spots must be reduced by a 1 1/2 feet.
One owner has said he will never vote for this modification. The majority of the remaining owners would approve it. Does this change need to be agreed upon by the consent of all 22 units?
A. Not if the spaces are part of the common elements.
If the parking spaces are part of the common elements, a supermajority of the owners must consent to an amendment to the declaration.
If the parking spaces are units with individual percentages, the board will need unanimous consent to add two additional spaces. In that case, perhaps some form of monetary compensation for the reduced space will turn the tide.
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Mark Pearlstein is a Chicago lawyer who specializes in condominium law. Write to him c/o Condominiums, Real Estate Section, 4th Floor, Chicago Tribune, 435 N. Michigan Ave., Chicago, IL 60611. You may e-mail questions to realestate@tribune.com. Sorry, he can’t make personal replies.
