Received September 12, 2016

Thank you for including our problem (What’s a Board to do About Abandoned Vehicles) and attorney's answer in the July/August Newsletter.  Between the time of my contact to you and the publication of the newsletter, our association attorney responded with a similar answer and specific language to adopt.  We sent the proposed rules amendment to the owners, and less than a week later the offending homeowner removed his car.  The board officially approved the amendment after waiting the requisite 30 days.
 

Thank you again for your action!

Editor’s Note: Special thanks to Michael DeSantis of Gardi & Haught for providing legal response for the article referenced above.

Looking for guidance regarding an association issue?  Email actha@actha.org and your question (and answer) may be published in a future issue of the ACTHA Newsletter.

A MESSAGE FROM THE EXECUTIVE DIRECTOR

Dear Association and Commercial Members, 

I want to make you aware of a recent administrative change impacting your association/company’s
ACTHA membership moving forward.

Effective January 1, 2017, all ACTHA memberships will cover the calendar year (January 1 – December 31) instead of the anniversary date of when your association/company joined. This change will align all ACTHA members to the same dues cycle while streamlining our internal business operations. It also allows members to submit dues payments early in their fiscal cycle, which for most members runs on the calendar year. 

As part of this transition, the primary contact from your association/company will receive a modified dues invoice that will adjust the membership to the calendar year.  For example, if your membership is due April 1, 2017, your association/company will receive a pro-rated invoice for 75% of your total dues rate to cover the period through 12/31/17.  Moving forward, all ACTHA members will receive dues invoices for the following year in December, with additional reminders in January and February.  The deadline for members to renew is March 1.

Please note that dues rates will not increase in 2017.  Through strong financial support from our commercial members, ACTHA is able to extend affordable membership rates and nominal event pricing for association members.  Did I mention that all owners may be included with your association membership, regardless if they serve on the board of directors? 

Additionally, the ACTHA directory (which typically distributes in late fall each year) will now distribute in spring after our dues cycle is complete.

If you have any questions regarding this change or membership in general, please contact our office at 312-987-1906 or via email at actha@actha.org.

 

Thank you for your continued support of ACTHA!

 

 

                                   

                                    Mark Swets, CAE

                                    Executive Director

 

By Benjamin J. Rooney, Attorney
Keay & Costello, P.C.
Wheaton, IL

Whether we like it or not, over the past few months it has been impossible to escape the onslaught of political ads for the upcoming presidential election. These ads bombard us from every angle, whether it be from television, radio, or online. But for many of you, it does not end there. Owners in your community association are displaying political signs to show their support (or disapproval) of one candidate or another.

For community association boards looking to regulate these political signs, it is important to keep two principles in mind. The first is that any rule it adopts must be reasonable, nondiscriminatory and applied uniformly. Secondly, displaying a political sign, whether it be for a national, state, local, or community association election, is a form of speech. In this country, we have a long history of going to great lengths to protect all speech, particularly political speech. This is not only evidenced by both the United States and Illinois constitutions (which typically only apply to governmental actors), but by the Illinois Condominium Property Act, which specifically prohibits a board from adopting or enforcing a rule or regulation that “may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution.” While most agree that community associations can regulate signs, associations need to make certain that its rules are not unreasonably infringing on an owner’s right of political speech.

While other states have adopted laws defining how a community association may restrict political signs, Illinois has not. With the above principles in mind, we are left to speculate as to what types of political sign restrictions a court would deem reasonable. When it comes to common elements or property owned by the association, outright prohibitions against erecting signs would likely be reasonable. As for restrictions concerning the display of political signs on the owner’s property, or in areas exclusively controlled by a single owner (i.e., balcony or yard), the answers become less clear. An outright prohibition of political signs in these areas would almost certainly be deemed unreasonable. Most likely, reasonable restrictions concerning when political signs can be posted would be deemed reasonable. For Example, Arizona law states that an association may not prohibit the display of political signs 71 days before the day of an election or later than 3 days after an election. Similarly, a reasonable restriction on the size and number of signs an owner may display on their property (or property the owner exclusively controls) would likely be enforceable.

Due to the great protections afforded to political speech, the lack of guidance in Illinois, and the passion that owners can have for, or against, the display of political signs, I highly recommend that any community association considering the adoption of rules concerning political signs to consult its attorney prior to adopting them.  

By Kat Formeller, Senior Counsel
Tressler LLP
Bolingbrook, IL

Legislation was enacted in January 2015 (Illinois Public Act 98-1042) which made changes to both the Illinois Condominium Property Act (“Condo Act”) and the Illinois Common Interest Community Act (“CICAA”) to allow for electronic notice and voting.   Previously, in order to bypass the archaic way of voting, associations had to amend their Declaration and By-Laws which requires membership approval.  Now, the board can adopt the appropriate rules to allow the association to use “technological means” to issue notices and collect votes from members.  This article addresses some “best practices” for drafting, adopting and implementing rules for electronic voting.

In order for an association to conduct its voting electronically, the association must first draft and adopt a rule which authorizes the board to send out electronic notices to members of the association as well as allows members to vote electronically.  CICAA does not specifically address the adoption of rules and regulations.  Thus, for common interest community associations, the association’s declaration and bylaws will determine the appropriate process.  As for condominiums, Section 18.4 of the Condo Act provides the procedures for adopting rules and regulations. 

A rule for electronic notices and voting should define the “technological means” that the board deems will “provide sufficient security, reliability, identification, and verifiability” - - i.e. Electronic Mail (“email”) - - as required by Section 18.8(b) of the Condo Act and Section 1-85(b) of CICAA.  The rule should also provide that the “technological means” of communications adopted by the board affords the association sufficient means of creating a record of those communications and collecting and tallying votes which the association can maintain, as required by Section 18.8(d) of the Condo Act and Section 1-85(d) of the Act. 

A rule for electronic notices and voting should also be specific and include detailed procedures for how notices are to be sent as well as how voting is to be conducted.  For example, the rule should state that voting by proxies is prohibited in board elections that are conducted electronically pursuant to Section 18(b)(9(B) of the Condo Act and 1-25(i) of CICAA. Additionally, it may be helpful to include in the rule how the board will handle the receipt of both a paper ballot and an electronic ballot from the same member.  If a member appears at a meeting and casts a ballot, the electronic ballot submitted by the member should be voided. 

Pursuant to Section 18(b)(9(B) of the Condo Act, Condo associations must adopt their rules for electronic voting at least 120 days before the board election.  Common interest communities, however, do not have such a restriction.  Once the rule is adopted, the association must obtain written authorization from its members who agree to participate in conducting elections via email or other technological means.  If a member does not provide such written authorization, the association must, at its expense, conduct business with the person without the use of electronic transmission or other equivalent technological means.

Finally, the Condo Act and CICAA provide certain provisions for the issuance of notices and instructions regarding electronic voting to members.  Instructions for electronic board elections are to be issued to members not less than ten (10) and not more than thirty (30) days before the election meeting pursuant to Section 18(b)(9)(B-5) of the Condo Act and Section 1-25(h-5)(i) of CICAA.  Section 18(b)(9)(B-5) of the Condo Act and Section 1-25(h-5)(i) of CICAA further provide that the notices/instructions should include the names of all candidates and must give the member voting through electronic or other technological means the opportunity to cast votes for candidates whose names do not appear on the ballot.

You should contact your association’s attorney with any questions regarding electronic voting and the proper procedures for same.

In less than two weeks, the first of two ACTHA fall events will commence bringing together board members and unit owners with quality vendors who serve community associations as well as leading industry experts addressing topics impacting today’s condo, townhome and homeowners associations. 

Exchange ideas with association board members 

Find Solutions to the biggest issues impacting community associations 

Meet representatives from legal, financial services, construction firms and more 

South Expo | Saturday, September 24 | 8am-1pm | Tinley Park Convention Center 

Schedule of Events 
7:30 a.m. Registration and Breakfast
8:00—9:00 a.m. Concurrent Education Sessions
                             CICAA for Dummies—Doug Sury, Attorney, Keay & Costello
                             Palm Today: It’s Still a Hot Topic—Dawn Moody, Attorney, Keough & Moody Martin Stone, Vice President, HSR Property Services

9:00—11:30 a.m. Trade Show
10:00—10:20 a.m. Mini Education Sessions (on trade show floor)
                                 Navigating the Tax Appeal Process
                                 Top 5 Things for Boards to Consider When Reviewing Contracts

10:45—11:05 a.m. Mini Education Sessions (on trade show floor)
                                 Disaster! Preparation, Response and Aftermath
                                 How to Kill a Tree

11:30 a.m.—1:00 p.m. Concurrent Education Sessions
                                        Don’t Be a Fool: Declarations & Bylaws—Bill Chatt, Attorney, Chatt & Prince
                                        Collecting Assessments: Money Matters—Jim Arrigo, Attorney, Chuhak & Tecson

Register by 9/21 and save $$!  Visit www.condoeducation.org

Click here to view the current list of exhibitors.

Association Members
Carillon Club in Naperville Condo Assn, Naperville
Edgewater Beach Apartments Corp, Chicago
Hills of Palos Condo Assn, Palos Hills
Park Tower Condo Assn, Chicago
Piers II, Woodridge
Roger Wiliams Condo Assn, Highland Park
St. James Condo Assn, Arlington Heights
Steeples Town Homes, Lemont
Twin Gables Condo Assn, Chicago

Commercial Members
Signal 88 Security – Provides a full suite of world-class, industry-leading and budget friendly security services for homeowner associations and multi-family residential communities Contact: Joshua Mailey, 815-261-0110 jmailey@signal88.com

Connected Property Management – Located in the Lakeview neighborhood of Chicago, a stellar team of 30+ professional managers dedicated solely to the management of condominiums. Contact: Paul Houillon, 773-913-2569
paul.houillon@connectedmanagement.com

The Habitat Company – As one of the largest multi-family property developers and managers, Habitat provides an array of services including project management, master insurance program, volume purchasing, budget program and preventative maintenance Contact: Diane White, Senior Vice President,
312-527-7453, dwhite@habitat.com

Whether you’re a first-time attendee or a seasoned regular, small preparations can make for an effective use of your time at ACTHA’s fall expo events. Below are 3 easy tips for both association and commercial attendees to help maximize their event experience, courtesy of ACTHA’s Events Committee: 

Association Attendees

Divide and Conquer. Savvy associations will register multiple people and assign each to attend various education sessions or meet with specific vendors. Since sessions run concurrently, this allows the association attendees to experience all aspects of the event, and then regroup and exchange notes.

Think about your Association’s Needs. Make a list of the top 5 needs for your association in the near future. Then review the exhibitor list prior to the event and identify which companies offer products/services that may meet your needs.

Keep the Big Picture in Mind. Although you may not need a new roof anytime soon, it doesn’t hurt to develop a relationship with a roofing company now. You’ll be able to identify potential companies the association could work with once a need arises.

Commercial Attendees

Promote Your Support. Let your customers know you’re exhibiting at our event. It allows you to maintain relationships with the ones that attend, and your best customers will provide positive word of mouth to other attendees during the event.

Think About Your Customer’s Needs. Nobody wants to hear the same canned sales pitch. With ACTHA, the relationship comes first—then the sale. Take time to understand your customer’s specific needs and describe how you can help them. It may not be today, next month or next year, but establishing strong relationships will benefit your business in the long-term.

Learn about the Industry. The world of community living is ever-changing, and vendors who understand and adapt to our unique needs will be more successful. Aside from participating in the trade show, consider attending the education sessions. Not only will you learn more about the industry, you may meet potential customers!

American Lung Association in Greater Chicago

 If someone smokes in your property, you know how serious the damage can be: burned carpet, stained walls, and the residual smell.  Secondhand smoke is hard on your investment, so imagine what it does to your residents.

 In a multi-unit building, 35 to 65 percent of the air in any given unit is shared from other units and common areas. That means if just one resident smokes, all other residents in that building share the consequences, including an increased risk of heart attacks, stroke and lung cancer. If children are exposed to secondhand smoke, they will have an increased risk of asthma attacks, infections, and SIDS (crib death).

 You can protect your residents’ health and your investment by making your properties smoke-free. Going smoke-free doesn’t mean that you don’t accept residents who smoke. Simply put, a smoke-free building is one in which smoking is not permitted indoors, including in any units or common areas. Adopting a smoke-free policy is legal, profitable and easy.

 Smoke-free policies are legal. Just like your policies regarding noise and pets, you can enact policies to prohibit smoking to create a better, safer living environment for your residents. In fact, the U.S. Department of Housing and Urban Development is in the process of transitioning all of its properties to smoke-free and strongly encourages private property owners and managers to do the same.

 Smoke-free policies are profitable. Compared with a unit where smoking is allowed, smoke-free units can cost two to six times less to turn over. In addition, a poll commissioned by Cook County Department of Public Health found that more than two-thirds of suburban Cook County renters would be more likely to rent in a smoke-free building than a building that permitted smoking in units. One out of five renters even said they would be willing to pay more to live in smoke-free housing.

 Smoke-free policies are easy. Developing and implementing a smoke-free policy takes minimal effort and produces maximum results for you and your residents. Once implemented, smoke-free policies are generally self-enforcing and require little staff time. Check out this step-by-step guide to implementing smoke-free housing for rental properties. Community associations who wish to become smoke-free would require a bylaws update.

 When you’re ready to get started, Healthy HotSpot is here to help. We work with property owners and managers, public housing agencies, private developers and community organizations to transition properties to smoke-free. We can provide free technical assistance, including help with sample lease language, resident surveys, smoke-free signage, smoking cessation resources and fact sheets.

 For more information, visit www.healthyhotspot.org or contact Aesha Binion at the Cook County Department of Public Health: abinion@cookcountyhhs.org or 708-633-8342. Property owners/managers outside of Cook County may find resources here.

By Michael C. Kim
Attorney, Michael C. Kim & Associates
Chicago
ACTHA Legislative Committee Co-Chair

As in past years, the Illinois General Assembly ultimately passed legislation affecting the operations of condominium and common interest community (a/k/a townhome and homeowners) associations.  Having been passed by the Legislature, the bills have now been signed into law by the Governor.

A synopsis of these bills is set forth below:

HOUSE BILL 4658 (HB 4658) (now Public Act 0776, effective August 12, 2016) amends the Condominium and Common Interest Community Ombudsperson Act (the “Ombudsperson Act”) by changing the definition of “condominium association” in accordance with Section 2(o) of the Illinois Condominium Property Act (as well as a similar reference for the definition of a “master association”); placing the Ombudsperson’s office within the Real Estate Division of the Department of Financial and Professional Regulation; precluding the Ombudsperson from having any authority to consider matters subject to the Illinois Human Rights Act or brought before the Department of Human Rights or the Illinois Human Rights Commission or comparable local governmental body or a federal agency or commission; changing the date on which the Ombudsperson can offer outreach and educational courses to July 1, 2017 (originally July 1, 2018); including in the Ombudsperson’s website information concerning alternative dispute resolution programs and contacts; permitting use of a statewide toll-free number to provide information and resources; specifying that the association’s policy for resolving complaints by unit owners must include a requirement that the determination of the dispute be made within 180 days after receipt of the original unit owner’s complaint; extending the deadline for establishing and adopting the unit owner’s complaint resolution policy to January 1, 2019 (if the association is created after January 1, 2019, it must establish and adopt its policy within 180 days after its creation); eliminating the potential penalty of an association’s not being able to enforce its common expense/assessment lien rights for failure to adopt a complaint resolution policy (note that the statutory reference to Section 65(g) is probably erroneous); postponing until July 1, 2020 (and subject to appropriation of funds), the Ombudsperson’s assisting a unit owner in resolving that owner’s dispute with his/her association involving either the Condominium Property Act or the Common Interest Community Association Act; providing that the Department shall establish rules describing the time limit, method and manner for dispute resolution by July 1, 2020; stating that a request for information to the Department of Ombudsperson is not a request under the Freedom of Information Act; stating that the confidentiality provisions of the Ombudsperson Act do not extend to educational, training and outreach material, statistical data or operational material maintained by the Department  under  the Ombudsperson Act; requiring  the Department to  submit its first annual report to the General

 

Assembly by July 1, 2018 and thereafter by October 1 of each year, which reports shall include the number of requests for information, the training, education and other information provided, the manner in which education and training was provided, and the time required to provide training, education or other information, and analysis of concerns within condominium and common interest communities; and providing a new effective date of January 1, 2017 (previously July 1, 2016) for the Ombudsperson Act, as well as a “sunset” (repeal) date of July 1, 2022 (previously July 1, 2021).

 

COMMENT:   The Ombudsperson Act is a “work in progress” with good intentions but hampered by lack of state funding.

HOUSE BILL 5696 (HB 5696) (now Public Act 99-0612, effective January 1, 2017) amends the Common Interest Community Association Act and Condominium Property Act to expand the definition of “acceptable technological means” to include “any generally available technology that, by rule of the association, is deemed to provide reasonable security, reliability, identification, and verifiability.”

COMMENT:  Essentially a restatement and reorganization of previously stated concepts in the statutes.  No material changes

SENATE BILL 2354 (SB 2354) (now Public Act 099-0567, effective January 1, 2017) amends the Condominium Property Act and Common Interest Community Association Act and represents a significant “push back” against the 2014 Palm II appellate court ruling.  SB 2354 confirms that an executive session can be held either as a part of an open meeting OR as a “stand alone” event “separately from a noticed meeting”.  Presumably, as a “stand alone” event, there would not be a notice requirement.  Also, SB 2354 expands the subject matter of executive session to include discussion with or about independent contractors, agents or other providers of goods and services.  Thus, the board can interview and meet with contractors or other third party providers in private.  In addition, SB 2354 expressly acknowledges that the board’s consultation with association legal counsel can be had in executive session.

 

COMMENT:  SB 2354 does not amend Section 18.5 of the Illinois Condominium Property Act which applies to master associations; so master association board meetings are NOT affected.  Note that SB 2354 did NOT amend either the Illinois Business Corporation Act or General Not for Profit Corporation Act, both of which corporation statutes have “open board meetings” sections.  It is likely that the overlooked Section 18.5 and the corporation statutes will be addressed in future legislation to make them all alike in this aspect.

 

SENATE BILL 2358 (SB 2358) (now Public Act 99-0567), effective January 1, 2017) amends the Condominium Property Act and the Common Interest Community Association Act to state that any assignment of a developer’s interest in the property to a successor is not effective until such a written assignment is recorded (presumably with the local recorder of deeds).

COMMENT:  Good idea.

SENATE BILL 2359 (SB 2359) (now Public Act 99-0569, effective January 1, 2017) amends the Condominium Property Act to expressly allow the board of directors to pledge the association’s future income (assessments and other sources) and to mortgage other association assets to secure a loan.

COMMENT:  Those declaration/by-laws that require unit owners’ approval of pledge of income (assessments) and other association assets are overridden by this statute, making it much easier to effectuate association borrowing.

SENATE BILL 2741 (SB 2741) (now Public Act 99-0627, effective January 1, 2017) amends the Common Interest Community Association Act to allow correction of errors, omissions or inconsistencies in the governing documents in order to conform with the Common Interest Community Association Act or other applicable law, by only a vote of 2/3 of the board of directors, and negates any provision that requires vote by or notice to the membership.

 

COMMENT:  Assumes that the board of directors is acting properly, but why eliminate notice to the owners?

 

Overall, the passed legislation is positive and helpful.  Of course, legislation is a continuing process year after year.  Some good and bad ideas from the past sessions may come back in 2017.

ACTHA's fall events offer opportunities to move your association forward

Make plans to attend ACTHA’s educational expo & trade shows this fall! Exchange ideas with association board members, find solutions to the biggest issues impacting community associations and meet representatives from legal, financial services, construction firms & more.

South Expo
Saturday, Sept. 24
8am—1pm
Tinley Park Convention Center

 

· How to review/amend your Declarations & Bylaws

· Overview of the Common Interest Community Association Act and how it differs from the Illinois Condominium Property Act

· Everything you need to know about collecting
assessments

· The PALM decision today: why it’s still a hot topic

North Expo
Saturday, Oct. 15
8am—1pm
Renaissance Chicago North Shore (Northbrook)

 

· Introduction to The Illinois Condominium
Property Act

· Managing your Association’s winter checklist

· Understanding rules & regulations

· How to fund your next project

All ACTHA education sessions are presented by leading experts in community association management.  Registration is now available at www.illinioscondoexpo.com.