Condo attic dwellers beware: Common elements not up for grabs
Q. Many of the units in our condominium association have large common element attics above their unit. The owners of many of these units, without any approval, substantially expanded the living portion of their units into these common element attics. One added a large office area; another a media room. Is this permitted?
A. There is a long line of appellate level cases in Illinois that require approval by all of the unit owners in the association in order for an owner to be given the exclusive use of a portion of the common elements. Recently, one of those cases specifically addressed expansion into a common element attic by an owner, and confirmed that an owner does not have the unilateral authority to do so.
Q. The board of directors of our condominium has established several advisory commissions, some members of which are not owners. One member of a commission does not even live in our association! Can these people who are not owners be elected to our board too?
A. This is answered by Section 18(a)(1) of the Illinois Condominium Property Act. That section provides that the board is elected from among the unit owners. While the board can appoint persons that are not unit owners to a commission, those commission members could not be on the board (unless they become a unit owner).
Q. The board of our association is composed of five persons, each of whom serve a two-year term, and who are elected on a staggered-term basis. This year, two seats will be up for election at the annual meeting. Is there a minimum number of candidates that we must have for these two seats? Is there a maximum number of candidates we can have for each seat?
A. There is no minimum number of candidates that are needed for each seat that is up for election. Similarly, there is no maximum number of candidates that can run for the open seats.
If there are not enough candidates to fill the seats that are up for election, the board members whose seats were not filled at the annual meeting would remain on the board until their successor is elected or until they resign.
Q. Our condominium association has six units. A married couple owns two of the units. Does this couple get to vote twice — one for each unit — or do they just get one vote?
A. The owner of each unit does get to vote. In this scenario, the couple that owns two of the units does get a vote for each unit. The vote they have for each unit is weighted based on each unit’s percentage of ownership in the common elements; just like the owners of the other four units.
Q. The spouse of a board member has sued our association in connection with injuries they suffered in a slip and fall incident in the association’s parking lot. Should the board member in question be permitted to stay on the board, as this seems like a conflict of interest?
A. This situation does not require the board member to leave the board. However, the board member should not attend any closed session of the board where this litigation will be discussed, and is not to vote on any matter related to the litigation. Similarly, the board member should not be provided any communications from the association’s counsel concerning this litigation.
• 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.