By Matthew O'Malley

A swimming pool in a condominium or homeowner Association can be a welcome amenity to residents.  However, it is important that the Association implement rules and regulations that are suited for the community and address potential legal issues.

Here are four safety tips your Association should consider that address pool upkeep and liability.

1. Maintenance

Check pool equipment, pool structure, water chemistry, drains, pumps, jets, first aid gear, and pool area furniture before the pool area is open. Maintaining equipment allows your Association to develop a budget for pool expenditures and replacements. Important pool related documentation such as insurance coverage, permits, and service records should also be kept up-to-date.

1. Fencing

Fencing can prevent pool access after-hours and when lifeguards are not on duty. Additionally, the Private Swimming Pool Enclosure Act requires that new outdoor swimming pools located on private residential property have “a protective fence, wall, or other effective permanent barrier”. This barrier must completely enclose the perimeter of the swimming pool with 42 inches or greater height. The Private Swimming Pool Enclosure Act does not apply to Jacuzzis or above ground pools with a height of 42 inches or more.

1. Supervision

While Illinois law does not require an Association to hire a lifeguard, Illinois public health codes govern swimming pool standards. These codes state that lifeguards are only required when an Association allows persons under the age of 16 to be in the pool area without a parent, guardian, or responsible person over 16.

If you community employs a lifeguard, they should be trained in first aid, CPR, and emergency response. The Association should keep applicable licensing and certification on file.

1. Signage

Clear, visible signage can reduce injuries and can mitigate liability. Pool rules addressing hours of operation, lifeguard availability, first aid, emergency contact information, guest usage, electrical devices, rain, thunderstorms, diving, food, and alcohol consumption should be posted around the pool area.

 

While this is not an exhaustive list, it should provide some preliminary pool safety issues your community should consider. An attorney can assist in navigating these concerns and advise on other critical issues, including: constructing a new pool; making improvements to existing rules and regulations; complying with Americans with Disabilities Act and Fair Housing Act considerations; and assessing potential risks to your Association due to changes in the law.

If you are a landlord, Board member, property manager and have concerns regarding swimming pool issues and their effect on your property, please do not hesitate to contact KSN. You can reach our law firm by calling 847-537-0500 or visiting our website at www.ksnlaw.com.

 

This article is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this article you understand that there is no attorney client relationship between you and the article author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. © 2019 Kovitz Shifrin Nesbit, A Professional Corporation.

By Kevin T. Block

OK, raise your hand if you are one of us that feels like it is never going to stop snowing this winter.  Mother Nature started us off with a bang in November with some light accumulations leading up to the big Thanksgiving blast that left seven to eleven inches on the ground in the northwest suburbs.  Then she seemed to take a nap in December but woke up crabby and ready to wage weather war again in January; and she has been relentless ever since.

Snow accumulation totals for this winter are already more than a foot over our average for an entire winter, and we still have a month left before we can even start talking about spring.  Along with all of this snow we have had more than our share of all of the other nasty weather elements Mother Nature keeps in her bag of tricks.  Historic ice storms, a polar vortex that crushed century old temperature records, rain, sleet, freezing rain, hail, and yes, even graupel.  In case you were wondering what graupel is, read on…

Ice storms don’t hit the Chicago area often because they require just the right combination of cold upper air, warm air above ground level and cold air right near the ground. But when they do happen, ice storms that leave less than an inch of ice on the ground can be much more disruptive than sleet, freezing rain, or snowstorms that leave similar amounts of precipitation. 

But what exactly is the difference between rain, freezing rain, sleet, ice, etc. and why do we need so many terms for this winter precipitation.  Whether or not precipitation remains snow or transitions to rain, freezing rain, sleet, hail, or graupel by the time it reaches the ground hinges on the temperature fluctuations the snowflakes may encounter as they travel through the layers of the atmosphere.

When the temperature between the ground and the clouds remains at or below the freezing mark (32F), precipitation will fall in the form of snow. It is possible for snow to fall when temperatures are above 32, as long as the layer of above-freezing air near the surface is rather shallow, not allowing the snowflakes to melt.

Sleet and freezing rain occur by a similar process but are different forms of precipitation.  Sleet occurs when snowflakes melt into a raindrop in a wedge of warm air well above the ground and then refreeze in a layer of freezing air just above the surface. This results in frozen raindrops, or small ice pellets.  Freezing rain occurs when the wedge of warm air aloft is much thicker, allowing the raindrop to survive until it comes in contact with the cold ground.  A coating of ice then forms on whatever the raindrops contact. Freezing rain is by far the most dangerous because it forms a solid sheet of ice, as opposed to sleet that just has small ice pellets that quickly bounce off of the surface.  Interestingy, sleet can even provide a little bit of traction for drivers, as opposed to the obvious dangers of a solid sheet of ice that forms from freezing rain.

And I have not forgotten, in case you were wondering what graupel is, graupel (snow pellets) forms when snowflakes are coated with a layer of ice. Graupel is typically white and opaque. Unlike hail or sleet, graupel is soft and can fall apart easily in your hand. Graupel is also usually smaller than hail, with a diameter of around 0.08-0.2 of an inch.

The demand for ice melt applications to remedy this onslaught of frequent, diverse precipitation has been high, exacerbated by the intermittent freeze/thaw cycles we have also seen that create melted runoff that refreezes overnight.  The need for more salt/chemical applications has resulted in some difficulty on the part of the suppliers keeping up with the demand of contractors.  Typically, suppliers are required to supply municipalities and transportation authorities first to ensure that the road ways are kept safe, leaving a high demand from contractors to take care of private properties.  Higher demand can also mean higher prices, which you may see in the future. 

If your budget has been blown up by the cost of clearing snow and keeping up with these applications, you are not alone.  Commercial building managers, retail mall owners, and HOAs alike share in the budget pain that this winter is creating.

However, the safety of employees, residents, visitors, etc. and the ability of vehicles to effectively navigate around your property should always be paramount when balancing the cost considerations that must be confronted in the midst of a winter like this one. 

Hang on though, two weeks ago, Punxsutawney Phil emerged from his burrow around 7:30 a.m. ET and did not see his shadow, predicting an early spring for us all.  A member of Phil’s Inner Circle read from the groundhog’s prediction scroll to the cheers and applause from the crowd;

“Faithful followers, there is no shadow of me and a beautiful spring it shall be.”

As the legend goes, if Phil sees his shadow, he considers it an “omen” of six more weeks of bad weather and heads back into his hole. If it’s cloudy and he doesn’t, you can put away that winter coat sooner than expected.  But of course, his predictions aren’t always correct.  Statistically, you’re better off trying to decide what the rest of February and March will look like by flipping a coinsince Phil’s accuracy record is only 40%.  At least with a coin you will be right half of the time.

By: Sheila Malchiodi, The Inside-Out Company, and Angela Williams Duea, LMS

Capital improvement projects are often started in the spring, and annual maintenance work is beginning now. The first step for an association is to obtain bids or proposals for the work. Some association boards have specific requirements on exactly what they want, but other board members lack industry knowledge and clarity in their request. If you do not have a streamlined system, you may not be getting the most out of your Requests for Proposals (RFPs). Here is a look at the entire process, along with some tips about how to better use RFPs in your procurement process.

1. Establish a calendar of events and project timeline.

Consider all of the projects your association plans to complete for the calendar year and list them in priority. Once you identify what projects are most important, you can start to establish individual project timelines.

Identify steps in the process that will require hard dates: RFP distribution, pre-bid meeting, proposal submission, vendor selection meeting and a preferred production timeframe.

Something to keep in mind when organizing your timeline, specifically for exterior work, is how long will the project take. The Midwest climate and variable weather plays a large role in the scheduling of projects. Planning, flexibility and realistic expectation-setting is crucial to meeting deadlines.

2. Determine if you are looking for short or long-term solutions.

Generic requests will produce a plethora of submissions, some providing short-term solutions and others long-term. To ensure that you are comparing apples to apples with your bids, make sure you tell each vendor the same list of expectations for the end result.

For example, if you have an older property with metal balcony railings that have been painted multiple times in the past and are currently failing (flaking paint, rusted posts, etc.), do you just need a quick scrape, spot prime and topcoat to make them look presentable for another year until the association can afford to replace? Or are you looking for more extensive preparation, welding repairs and a full prime coat / two topcoat systems that will ensure the railings look presentable and are protected for the next five years?

By establishing clear expectations you are more apt to receive effective proposals, which will ensure you have accurate information to match the right contactor to your community’s needs.

3. Provide a clear scope of work.

It is important that you provide vendors with a clear scope of work. This includes a full list of component and preferred products (brands and grades). Note whether  repairs or work to be completed should  match existing structures or change to something new. This can be a difficult task if you are not familiar with the required preparation or latest products on the market. If you are unclear of how to go about setting a clear scope of work, consider hiring an engineer or asking a product company to write the scope of work for you.

If you have a large-scale project that requires multiple contractors, has problems needing specifications, or one requiring a large portion of the association’s money, utilizing a professional in that field will safeguard your association from errors right from the start. The extra upfront cost may save you from larger additional expenses that may be incurred during the project.

As Benjamin Franklin said, “An investment in knowledge pays the best interest.”

4. Host a pre-bid meeting and over-communicate your expectations.

This meeting should be mandatory, where all potential bidders are present. The scope of work, alternative options, goals, and deadlines should be discussed. This also gives bidders the opportunity to ask questions, propose cost-saving solutions and give alternate suggestions prior to bid submission. Many times, this pre-bid meeting uncovers defects, areas of concern and a multitude of other things that could have a significant effect on the outcome of your project.

5. Ask for references.

Even though we know most companies will give their best clients as references, have a list of specific questions to ask regarding timeliness, cleanliness, reliability, and so on. Do not be afraid to ask the hard questions. This will uncover areas of concern that will affect your decision.

6. Review proposals.

Some associations choose to create a spreadsheet that includes all of the bidding companies. This is a great tool to be able to look at competitors pricing side by side. With that said, it is still important to review proposals submitted in their entirety. Things to look for and consider: additional options, areas not included, end result disclaimers, current conditions, supervision levels, warranties and products. This will assist in determining who your top three companies will be.

7. .Interview your top three companies.

Many times, the lowest price is not the best option. Use this time to discover the alternatives, suggestions and product offerings of each individual bid. Utilize your property manager and their area of expertise with selection.

8. Hire the company that best suits the association’s needs and budget.

Now that you have collected facts, created your plan and interviewed your top contractors, it is time to make your decision. Through preplanning and education, you are sure to find the right contractor for your project that will meet your needs, expectations and budget.

Not all RFPs are hard to create. When you utilize professional partnerships and their expertise, associations can accomplish otherwise overwhelming tasks without undue distress. Property managers are able to seek credible vendors, gather extensive information related to the job at hand and make help associations make hard, but necessary, decisions that will ultimately result in the success of a project.

 A well-executed RFP can make the difference between a process that flows and one full of problems. If your system is not honed, consider the steps listed above and see if you can streamline your system.

In a collection of orders entered at the end of March 2019, Cook County Circuit Court Judge Margaret Ann Brennan ruled on several motions for sanctions, ultimately awarding over $1 million in sanctions against a single unit owner and his attorney.  In so doing, Judge Brennan shone a spotlight on an all-too familiar phenomenon in the condominium-association setting: By: Diane Silverburgserial litigants.

By: Diane Silverburg

Judge Brennan was assigned to handle a number of lawsuits that had been consolidated into one:  1618 Sheridan Rd. Condominium Association v. Marshall Spiegel, Case No. 15 L 10817, consolidated with Case Nos. 16 L 3564 and 15 CH 18825.   In ruling on the several motions for sanctions filed in the consolidated proceeding, Judge Brennan observed that the unit owner in question had filed over 60 lawsuits in Cook County and the Northern District of Illinois, alone.  Together with the assistance of his attorney, John Xydakis, Spiegel had filed lengthy and successive pleadings in the three consolidated matters, often not waiting for the Judge even to rule before submitting another amended pleading.  The range of claims that Mr. Spiegel sought to litigate – which grew with each amendment – ranged from purported theft and slander, to harassment and stalking, to fraud, falsification of affidavits, and ex parte communications, as well as for such picayune matters as empty water bottles left near his front door and the like.

Among the many findings the Court made in awarding sanctions against Spiegel and his counsel, Xydakis, were that they had:

• filed motions that were objectively unreasonable, including motions to disqualify Kim’s counsel;
• filed a duplicative lawsuit brought solely to harass, increase costs, and cause delay;
• repeated misstatements of the law and evidence in their pleadings;
• included numerous irrelevant allegations in their pleadings;
• repeatedly displayed complete disregard for the importance of judicial economy; and
• failed to dismiss obviously frivolous claims.

Spiegel and Xydakis were ordered to pay the sanctions award of over $1 million by no later than May 1, 2019.

The “Spiegel” orders reflect observations similar to those voiced by former Circuit Court Judge Mary Ann Mason in her dissenting opinion in Boucher v. 111 East Chestnut Condominium Association.  There, now-Justice Mason remarked on the dysfunctionality that can occur in a condominium setting where a unit owner – despite his having voluntarily sworn to abide by the association’s “constitution” (declaration) upon becoming a member of the association – decides that the declaration simply does not apply to him.  She further observed that “were courts to referee internal disputes that arise in condominium associations, they would have time for little else” and that courts should thus be hesitant about recognizing “such spurious claims as they burden associations with costly litigation that must be borne by all unit owners.”

While it goes without saying that legitimate claims deserve all due consideration in an appropriate forum, Judge Brennan’s award of sanctions in 1618 Sheridan Rd. Condominium Association v. Spiegel properly should give unit owners inclined to put their hubris, entertainment, and ego ahead of an association’s common good, goals and financial health, ample reason to pause before proceeding with trumped-up claims.

 

This article is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this article you understand that there is no attorney client relationship between you and the article author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. © 2019 Kovitz Shifrin Nesbit, A Professional Corporation.

By: Joseph Scharnak

As you’re probably well aware, Association residents pay regular assessments to cover collective maintenance expenses, based on the annually-budgeted needs of the community. Are you familiar with Special Assessments?

Let’s review the basics:

What are Special Assessments?

Special assessments are monies, in addition to the regular monthly assessment, collected by a condominium, townhome, or homeowner’s association from its members so that the Association can pay for expenditures not included in the Association’s annual budget.

An Association’s use of funds collected through a special assessment is generally restricted to the specific project for which the Special Assessment was approved as well as any ancillary costs (for example, engineering fees, building permits, construction bonds).

When an Association levies a special assessment, the board resolution may call for payment in a single lump-sum or in multiple installments – most frequently in monthly installments payable over the course of several years.

Special assessments payable in installment payments are often adopted in connection with a bank loan obtained by the Association. The interest cost incurred by the Association is passed through to only those association members that elect to pay the special assessment through installment payments.

Why Adopt a Special Assessment?

Associations may be forced to adopt a special assessment in connection with an unforeseen major expense. For example, a catastrophic loss that is not fully covered by the Association’s insurance coverage or when the Association finds itself in a position where construction defect litigation becomes necessary.

More often, special assessments are levied because an Association has elected not adequately funded its reserve account over the course of many years.  Unfortunately, when the day comes where the Association is faced with a major repair cost, the reserve account doesn’t have enough money to fully cover the cost of the project.

Even when an Association’s annual budget includes a reserve fund contribution, they may find that a special assessment is still required because the board relied upon an unrealistic or outdated reserve study in connection with its planning for future maintenance, repair and replacement costs.

What Legal Restrictions Exist for Special Assessments in Condominium Associations?

Notice of the Meeting. Unlike a regular board meeting, which may be called on as little as 48 hours’ notice, a board meeting called for the purpose of adopting a Special Assessment requires written notice to each member of the association no less than 10 days and no more than 30 days in advance of the meeting.

Owner Approval. Special Assessments for additions and alterations to common elements not included in the annual budget must be approved by a 2/3rds vote of all owners.

Owners’ Right to Veto. In situations where a Special Assessment is adopted for purposes of maintaining, repairing or replacing the common elements, if the amount of the proposed Special Assessment plus the amount of all regular assessments and any other special assessments payable in the current fiscal year exceeds 115% of the sum of all regular assessments and special assessments payable during the immediately preceding fiscal year, the owners have an opportunity to veto the board’s decision by submitting a petition signed by owners owning at least 20% of the total ownership interest in the association within 21 days of the date on which the board adopted the Special Assessment.

Emergency Situations. When a Special Assessment is adopted by a board in order to comply with any law, or in order to address an emergency situation presenting an immediate danger to the structural integrity of the common elements or to the life, health, safety or property of the owners, no owner approval is required to adopt the Special Assessment and the owners do not have the right to veto the board’s decision.

If your Association is considering levying a special assessment, do not hesitate to contact our law firm. Since 1985, KSN has been a legal resource for condominium, townhome, or homeowner’s associations throughout the Chicagoland area. We have multiple offices including downtown Chicago, Mundelein, and Naperville. Call 855-537-0500 or visit www.ksnlaw.com to get started.

This article is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this article you understand that there is no attorney client relationship between you and the article author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. © 2019 Kovitz Shifrin Nesbit, A Professional Corporation.

By: Condo Law Watch Tressler LLP

In the context of homeowners and condominium associations, a proxy is a document authorizing a person to act or vote on behalf of an owner who is unable to attend a meeting. Proxies are most commonly used at board elections and owners wishing to run for a seat on the board of directors will often times go door-to-door collecting proxies ahead of elections. Although proxies are a powerful tool for board elections, both the Illinois Condominium Property Act (the Condo Act) and the Common Interest Community Association Act (CICAA) contain strict requirements for proxies. While proxies do not need to be on any specific form, if a proxy does not meet these minimum requirements set forth in the Condo Act, CICAA or the association’s governing documents, then the proxy must be deemed invalid and the vote associated with the proxy should not be counted.

Specifically, Section 18(b)(9)(A) of the Condo Act provides that unless the Articles of Incorporation or the By-Laws of an Association provide otherwise, “a unit owner may vote by proxy executed in writing by the unit owner or by his duly authorized attorney in fact; that the proxy must bear the date of execution and, unless the condominium instruments or the written proxy itself provide otherwise, is invalid after 11 months from the date of its execution.” This means that the proxy must: (1) be in writing; (2) signed and dated by the owner executing the proxy; and (3) is automatically invalid 11 months after the execution date, unless otherwise stated.

If the board opts to distribute its own proxy forms prior to an election, Section 18(a)(18) of the Condo Act further requires that the proxy must give owners “the opportunity to express a preference for any of the known candidates for the board or to write in a name.”

Section 1-25(h-5)(1) of CICAA has similar requirements as the Condo Act and provides that an owner may vote, “by proxy executed in writing by the member or by his or her duly authorized attorney in fact, provided, however, that the proxy bears the date of execution. Unless the community instruments or the written proxy itself provide otherwise, proxies will not be valid for more than 11 months after the date of its execution.”

Once a proxy is submitted to the board, it is best practice for the board or the board’s managing agent to carefully examine each proxy to ensure that it meets the requirements of the Condo Act or CICAA prior to counting the vote associated with the proxy. It is also important to review the Association’s governing documents to confirm any additional requirements for proxies are also met.  When examining proxies, the board should also confirm that the proxy is signed by the record owner of the unit and not a non-owner occupant of the unit. Further, the board should ensure that the person acting as an owner’s proxy at a meeting is the same individual identified on the proxy form. Finally, the board should ensure that the proxy holder votes according to the owner’s preference if such is expressed on the proxy form.

Proxies are revocable. That means an owner can change his or her mind and issue a new proxy which would effectively invalidate the earlier executed proxy.  An owner can also appear in person at the meeting and cast a ballot to invalidate a proxy.

Dr. Brandon Hamilton, Ombudsperson for Tree Farm Estates

I grew up in Gary, Indiana. After high school and a period in the Navy, I went to colleges in Chicago, Boston, Washington, D.C. and Los Angeles. With all of this travel, I never thought about purchasing property. I also decided to stay flexible so that I could accept employment anywhere. I worked in Boston, San Diego, Valparaiso (Indiana) just to name a few cities. After completing my doctorate in business, I decided to settle in the Chicagoland area. I purchased a townhome in Tree Farm Estates, just on the southern outskirts of Chicago in the Village of Calumet Park.

I had never lived anywhere long enough to recognize that now, as a homeowner, I also became a part of a community. I don’t want to take that distinction for granted. Let’s talk about the word community. Some have defined a community as a group of people living in the same defined area, sharing the same basic values and sharing an organizational framework. Sociologists and geographers define a community as any set of social relationships operating within certain boundaries. The Village of Calumet Park has very small boundaries as it is just one square mile with about 8,000 residents. I knew nothing of the history and sociology and culture of this little village, so I had to learn from neighbors. I also became an active citizen, attending numerous municipality meetings. I had some vary courageous conversations with elected officials. I soon was appointed the Director of Community Relations for the Village. For those that move into a condominium or homeowner associations, your community is also a population that is geographically focused and with a collective identity and with a collective purpose. I started to get a better grasp of the word community as I read the Declaration of Covenants, Conditions, Easements and Restrictions for Tree Farm Estates Townhome Association. This was difficult to grasp at first reading because there were a lot of terms and definitions that were new to me. As I became comfortable with this governing document and my new home, I was invited by some neighbors to attend a meeting to discuss forming an association. After just a few minutes of this meeting, I realized that the current owners were actually forming an organization that would gather complaints to express to the developer’s lawyer, the person currently running the association. I was inexperienced with shared ownership, but I did not think that our community should be a complex mass of needs and problems but rather a diverse web of collaborative citizens. The developer’s lawyer informed us that we had to officially form an association and select a management company as our Board of Managers. I was elected president of the Board of Directors as the owners recognized my experience as an officer of many not-for-profit boards. We decided against a management company.

We became self-managed by combining the roles of the Board of Directors and the Board of Managers. Influenced by a tradition of 19th century romanticism, some sociologists have regarded community as necessarily beneficial to human needs and social interaction. There can be numerous community platforms for common interest communities: There are communities of action, communities of practice, communities of place, communities of interest and communities of circumstances. We knew that we are clearly a “community of place” united by geography. However, many of us moved into the townhome complex without knowing that this is a shared ownership community. You would certainly, therefore, view this association as a “community of circumstances,” united by challenges not of our making. But even this framework is not bad as we learned to focus as a community on dealing with various situations collaboratively. As I diagnosed our community socially, politically, culturally and economically, I saw a need to create a more effective community model. Some of the owners had gotten to know their neighbors well enough such that we could accept that we developed into a “community of interest” focusing on a passion for the same values and activities. Members of a community of interest generally share the same common interest focusing upon depth of passion for that interest. We realized that the Board of Directors needed to push toward more hardcore discussions about the applicability of the bylaws, declarations, rules and regulations. As leaders of the community of interest, our Board of Directors began to evolve into a “community of action,” using collective power to develop policies and make changes. We needed to understand our community and the various social groups that formed. We had to learn how to gather commitments from primary groups, secondary groups, ingroups and outgroups. Primary groups are the enduring owners. Secondary groups lack the emotional bonding or sharing of common values. Ingroups share a sense of identity. Outgroups have no sense of loyalty to the association. This community of action framework is very effective when there is community commitment. We are still struggling at Tree Farm Estates with forming committed committees to help us share best practices.

I am now the ombudsperson for Tree Farm Estates with a focus on educating unit owners and the Board of Directors about the Common Interest Community Act and complying with the laws governing common interest community property.

Whatever the definitional difficulties, all communities, both real and symbolic, exist and operate within boundaries. These boundaries serve to demarcate social membership from non-membership. Whatever framework you see in your association, there are actions that you can take to build an ideology of community in your condominium or homeowner association boundaries. You can invite your neighbors over for a meal. You can mentor a youth in the association. You can help simply by picking up litter on the property if you see it. It is my hope by sharing my leadership experiences at Tree Farm Estates that your association learns to work together to make yours a community where you are all proud to be members.

Dr. Brandon Hamilton

Treefarm.admin@gmail.com

By: Michael C. Kim, Michael C. Kim & Associates

Michael C. Kim, ACTHA member and ASCO General Counsel, highlights the importance of condominium elections and the steps that need to be taken to ensure a fair, legal election. 

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