The president of the association should vote on most questions

Q: The chair of the board of directors of our homeowners association does not vote on any matter or motion submitted to the board, unless there is a tie vote. She says she is not supposed to vote in general and that the chairman of the board only votes to break a tie. Is it correct?

A: This problem comes up several times. There is a very common misconception about the vote of the president of a condominium or a community association of common interest. Many people think that a board chair votes only to break a tie. It is absolutely incorrect.

The president of a co-ownership or of a community association of common interest, like any other member of the board of directors, is the trustee of the owners, has the right to vote and must exercise his right to vote; unless there is a valid reason to abstain from voting. Failure to vote on matters submitted to the board of directors undoubtedly constitutes a breach of the fiduciary duty of a member of the board of directors, unless there is a legitimate reason for a member of the board to “abstain from voting”. »To vote on a particular question.

In a municipality, the president votes only to break the tie. It is perhaps the exposure of the members of the board of directors of the association to this municipal electoral practice that leads to a misunderstanding as to the role of the president of the board of directors of the association in the vote.

Q: Our condominium board is pushing for unit owners to agree to receive email notifications. The Board of Directors advises owners that they will be charged for management time and postage if notices need to be sent to an owner by US mail. Is this allowed?

A: This is governed by 18.8 (f) of the Illinois Condominium Property Act. If a person does not provide written permission to do business using acceptable technological means, such as email, the association must, at its expense, do business with that person without using acceptable technological means. This means that the association cannot bill an owner for expenses associated with sending a notice by mail if an owner does not consent to receive a notice electronically.

Q: Our association’s annual meeting is fast approaching. So far, we have only received one application form for the positions of three board members whose terms expire at the annual meeting. The deadline for submitting application forms is approaching. What if we don’t have three candidates?

A: At the outset, it would be prudent to remind owners of the need for candidates for the board of directors.

That said, the annual meeting would continue even if there was only one candidate for all three positions. Unless the candidates are nominated by the annual meeting, that single “announced” candidate would apparently be elected to one of the three open seats. Under the wording of the General Not for Profit Corporation Act, two of the board members whose terms would otherwise expire at the annual meeting would continue to serve on the board until their successors are elected. If this happens, the minutes of the annual meeting should take this into account carefully; to reduce the risk of confusion in next year’s elections.

Q: Is it appropriate for our condominium association to send proxies for the annual meeting without notifying the owners of who is running for election?

A: Pursuant to Section 18 (a) (18) of the Illinois Condominium Property Act, any proxy distributed for election to the board of directors by the board of directors must give the owner of the unit the opportunity to express a preference for one of the known candidates for the board or write in a name. Therefore, if there are known candidates at the time of distribution of the proxy form, the known candidates should be identified on the proxy issued by the association.

• David M. Bendoff is a lawyer with Kovitz Shifrin Nesbit in suburban Chicago. Email your questions for the column to [email protected] The firm provides legal services to condominiums, townhouses, homeowners associations and housing co-ops. This column does not replace consultation with legal counsel.

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