Maintenance issues may involve both retail space, condos

Q: Our building is comprised of retail space on the first floor and condominium units on the second through fourth floors. The retail space is not part of the condominium.

There is some sort of operating agreement between the condominium and the retail property. An issue has come up about maintenance that requires us to know if the portion of the building in question is located within the condominium property or the retail space. How can we do this?

A: The plat of survey attached to the condominium declaration should identify the boundary between the retail space and the condominium. If the question cannot be answered by simply reviewing the plat, it would be useful to have a surveyor visit the building and identify by some sort of monument where the boundary is located. You should then be able to determine whether the portion of the building in question is part of the retail space or part of the condominium.

Q: The board of directors of our condominium leased a portion of the building's roof to a company who installed a cell tower. Should the income from this lease be distributed to the unit owners?

A: The typical condominium declaration includes language that permits the board to lease a portion of the common elements. The rent paid would be income to the association, and not the individual owners.

This type of income is usually deposited in the association's operating account, and offsets expenses that would otherwise be paid by unit owner assessments. As such, owners should be feeling the benefit of the rent income in the form of lower assessments.

Q: We have a situation in which an owner's insurance and the condominium association's property insurance cover water damage to drywall on the perimeter walls of the unit. Whose insurance pays for the damage?

A: If at the time of a loss under the association's policy there is other insurance in the name of a unit owner covering the same property, the association's policy is primary insurance. This is described in Section 12(f) of the Illinois Condominium Property Act.

Under the situation you describe, the association's insurance would be triggered first. The unit owner's policy would be triggered if the damage to the drywall exceeds the amount of the association's property insurance.

Q: I am on the board of a smaller association. It is very difficult to find owners to run for the board, and the current three members have been on the board for about six years. I am selling my unit. Can I continue to serve on the board after I sell my unit?

A: Board members of an Illinois condominium or common interest community association are elected from among the owners/membership. As such, you will not be eligible to serve on the board once you sell your unit. It would be useful for the board to speak with some of the owners as soon as possible to solicit interest in filling the vacancy that will be created when you close on the sale of your unit.

Q: A quorum of the association board was present when a meeting was called to order. About 20 minutes into the meeting, a board member had to leave suddenly, and there was no longer a quorum. One of the board members stated that so long as there was a quorum when the meeting was called to order, the meeting could continue. The board meeting did continue, and several decisions were made. Was this all proper?

A: A quorum of the board must be present throughout a board meeting. The meeting should have been adjourned once the meeting lacked a quorum. Actions and board votes taken after the meeting lacked a quorum would not be valid.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.