Page 5 - CooperatorNews Chicagoland Fall 2021

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COOPERATORNEWS CHICAGOLAND —
FALL 2021
5
QUESTIONS & ANSWERS
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Board Members Behaving Madly
Q
What can be done when the pres-
ident of the condo board verbally
harasses the building’s superin-
tendent?
—Appalled Tenant
A
“In my experience,” says
attorney Mark Rosenbaum
of
Chicago-based
firm
Fischel Kahn, “very few condominium
instruments (namely the declaration and
bylaws) directly address the relationship
between unit owners and the staff/em-
ployees of the association. All the more
reason for an association to have rules
and regulations about abusive conduct.
“In my opinion, an association should
have a rule in place that obligates all unit
owners to be civil to each other, other oc-
cupants, all staff, and all guests. The rule
should also allow non-owners to file com-
plaints against other persons (owners/oc-
cupants/staff/invitees) who are verbally
abusive. And the board should issue fines
as appropriate. If the abuse is physical,
that is a matter for the police.
“That being said, most declarations
have a provision similar to the follow-
ing: ‘No noxious or offensive activity shall
be carried on in any unit or in the com-
mon elements, nor shall anything be done
therein, either willfully or negligently,
which may be or become an annoyance
or a nuisance to the other unit owners or
occupants.’
“Note that the president’s actions could
be argued to be the carrying on of an of-
fensive activity. But it is less likely that
the annoyance or nuisance language ap-
plies because the conduct is not directed
to another unit owner or occupant. Still,
a unit owner or occupant who witnesses her condominium building? I would think may be in a ‘no-win’ situation. For exam-
the conduct could file a complaint vs. the that this would be a conflict of interest ple, if the negative information is prop-
president on the grounds that he/she was/
were annoyed by what the president said. personal information about individuals, her of committing fraud; conversely, if it
If such a complaint is filed, since it could and personal board information such as is disclosed, his seller client may claim
result in a fine, the association’s fining litigation against the board and other in-
procedures would be triggered. And the formation which they cannot disclose and board could adopt a policy that directors
president would have to recuse himself they can be held liable. One cannot serve may not access individual unit owner in-
from the process.
“A major impact of the president be-
ing verbally abusive could be that it casts
some doubt as to whether that person
should be president. Since the president
of an association ordinarily serves in that
office at the pleasure of the board, it is
within the power of any board member on the transaction (such as whether or if he/she nonetheless proceeds to handle
to make a motion to the board to remove not to waive a right of first refusal) for such transactions, there is probably little
that person as president as a result of his/
her conduct. The board cannot remove a broker,” says Chicago attorney Michael wrongdoing.”
the president as a director, however. That C. Kim of law firm Schoenberg Finkel
power is with the owners. A motion to the Beederman Bell Glazer. “As for a ‘conflict’
board to remove the president from that arising from his/her access to personal in-
office need not be made after a hearing. formation about an individual party to a
The requirement of a hearing only applies sale/lease transaction in which he/she is
by law to the issuance of fines. Still, the involved as a broker, it probably would
person making the motion may have to not be a true conflict of interest but rather decided not to change them due to CO-
further explain why the motion is being a possible breach of fiduciary duty (to VID. It’s now been over a year since they
made, and the board may want to hold use information accessible to him/her were changed, and if we turn on the heat,
hearings anyway, to determine if the al-
legations of verbal abuse have any basis in or a possible breach of the unit owner’s asked the building to please clean out the
fact.
“Of course, if a board member makes rector should not be disclosing or using refused, again citing the pandemic. Do we
such a motion, that may result in the confidential board information (such as have legal recourse?
president being less than happy with the the board’s strategy or planned action in
board member and may affect that board pending or anticipated litigation) for per-
member’s ability to get things done in the sonal benefit.
association, win or lose.”
Real Estate Agent...and Board Member?
Q
Can a newly-appointed vice disclose the confidential negative infor-
president to the board, who is mation). If the vice president is aware of
also a broker, sell units in his/
since the board member has access to all erly withheld, the buyer may accuse him/
two masters. Please clarify.
—Questioning a Possible Ethics Breach
A
“There would be a conflict potential problems, accusations, or suspi-
of interest if he/she were to cion by simply avoiding involvement with
participate in a board vote unit sales or leases in the condominium,
which he/she was to be compensated as that can be done absent evidence of actual
only as a director for personal benefit); dust and mold pours out into our units. We
privacy rights. Similarly, an officer or di-
“As a practical matter, it may be diffi-
cult to discover any such misuse of infor-
mation (for example, if the broker steers
potential buyers away from the condo-
minium even if he/she does not expressly and bylaws, read in conjunction with Sec-
confidential negative information, he/she
that he was ‘killing the deal.’ Perhaps, the
formation or files without a specific, le-
gitimate ‘need to know’ basis.
“Ultimately, while it may be prefer-
able for the vice president to avoid such
Cold and Unfi ltered
Q
We live in a 200-unit condo. Th e
building changes the fi lters in
the convectors twice a year, but
convectors so we can use the heat, but they
—Seeking Clean Heat
A
“The first step in evaluating
this type of scenario is to
verify whether, under the
condominium association’s declaration
tions 2 and 4.1(a) of the Illinois Condo-
continued on page 10
Legal
Q
A&