Q: I have two questions concerning condominium board meetings. Notwithstanding I am a unit owner of a condominium unit, the board has prohibited me from attending board meetings because I am not a board member. Further, the board consists of nine directors, but I have learned that the president casts votes on motions for himself and non-present directors insisting he has a proxy for their board vote. Is the board acting properly?
A: It is improper to prohibit unit owners from attending open portions of board meetings pursuant to Section 18(a)(8) of the Condominium Act, and to do so exposes the board members to breach a fiduciary duty claim. Unit owners have an express right to attend board meetings. Unit owners do not have a right to speak during board meetings.
Regarding the second question, there is no basis in the law for the president of the board to cast votes for directors that are not in attendance at board meetings. There is no mechanism for board members to deliver a proxy to other board members to cast their votes on an issue. Simply stated, board members must attend a meeting in person or by other means such as Skype or speaker phone to be entitled to cast their vote as a director.
Q: I am a board member for a small condominium association. We meet six times a year and, thus, occasionally need to make decisions by email in between meetings. We are careful to make sure that all such decisions are unanimous. Should we as a board ratify such decisions at the next board meeting or do those interim decisions stand on their own?
A: The answer is neither. While condominium boards historically would make decisions by unanimous consent outside of a properly called board meeting pursuant to provisions contained in the Illinois Not-for-Profit Corporation Act, subsequent to the recent Palm II v. 2800 Lake Shore Drive Condominium Association appellate case, email or other written voting — whether unanimous or not — violates the Condominium Act and to do so subjects board members to a breach of fiduciary duty claim.
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Q: I live in a four-unit condominium building where the developer still owns two units. Does the developer get two votes for board decisions, and, if so, what happens in the event of a tie?
A: Even in a small condominium association, the size, and election of, the board are dictated by the provisions of the association’s bylaws. While possible, it is unlikely there is an even number of directors to be elected to the board. Most bylaws contemplate an odd number of directors to avoid a tie vote.
In those rare circumstances where there is an even number of directors, the bylaws should contain a dispute resolution provision in the event of a tie, otherwise, the motion at issue does not pass because of a tie vote.