Q. I own a garden-level condominium unit and discovered water infiltration coming into my unit. The exact source of the water infiltration was not apparent so the condominium board recommended I install an expensive drain system, possibly due to a rise in the water table. I did so, however, years later, the issue continues sporadically. After hiring a contractor to tear apart my drywall and the insulation to investigate, the culprit of water penetration is actually through the exterior cinderblock wall below grade.
The condominium board denies any responsibility and refuses to seal the exterior wall to prevent water infiltration. Any thoughts?
A. Whether above-grade, or below-grade, a condominium board has the obligation to maintain, repair or replace the exterior common elements to prevent water from entering units. A knowing failure to do so will subject the board members to a breach of fiduciary duty and the association to a claim for property damages.
A written report from a qualified contractor identifying the cause of the water infiltration should be prepared and delivered to the board and the managing agent with a demand that the board abate the water infiltration into the unit. A proposed solution should also be included in the report.
If the board continues to refuse to address this issue, the unit owner may file a declaratory lawsuit seeking a court order to force the board to maintain, repair and replace the exterior common elements to prevent water infiltration into the unit, and for any damages the unit owner incurred.
Practically speaking, an alternative to at least stop the water infiltration may be for the unit owner to request board permission to seal the below-grade, common element exterior wall himself and the unit owner can decide whether the benefits outweigh the costs to pursue the association for the remedial costs.
Q. I was recently elected to my condominium association board. While campaigning, I endorsed openness and unit owner involvement through committees. At the first meeting of the new board, the board president declared our association will be forming commissions instead of committees. What is the difference?
A. To avoid board member burnout and spread the responsibility for administration of the association to more people, committees and commissions are an invaluable tool to assist the board with the operation of the association.
Practically speaking, commissions and committees are created by the board to gather information and analyze an issue and make recommendations to the board.
From a legal perspective, the Illinois Not-for-Profit Corporation Act requires a committee contain two or more board members whereas an advisory board or commission may be created without board members. Boards should be mindful of the recent Palm II case, which states that a quorum of the board cannot meet to discuss board business unless proper notice is delivered to the unit owners.
Thus, if a committee contains a quorum of the board, the committee must also comply with meeting notice requirements to avoid a Palm II violation.
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Legislative update. In 2014, the Illinois Appellate Court published its opinion in Palm v. 2800 Lake Shore Drive Condominium Assn. (Palm II), which significantly affected the day-to-day business administration of a condominium board due to its various holdings. After the ruling, the Illinois legislature proposed various proposals to address the onerous effects of Palm II. Of those various proposals, H.B. 2640 was approved in the Illinois House and Senate and sent to Gov. Bruce Rauner on Aug. 7 for approval.
In part, H.B. 2640 authorizes a board to ratify and confirm actions taken outside a properly called board meeting in response to an emergency. The bill provides that condominium bylaws require the board to give notice to the unit owners of the occurrence and general description of an emergency event within seven business days after the emergency for actions taken outside of a properly called board meeting. Rauner is expected to sign the legislation.