Having a disinterested, apathetic board is a problem in some buildings, though a board that oversteps the boundaries of its power or invades the privacy of residents, also can cause hassles. By educating and informing themselves of the extent and limitations of their influence, a good board should be less apt to go beyond its authority, and less likely to incur acrimony (and possible legal costs) for the community they serve.
All association board members should know about the legal and ethical boundaries within which they are expected to operate, since understanding those parameters will help them determine when to exercise caution, consult their professionals, and so forth. Ignorance of these boundaries can lead to troubles, and even unnecessary lawsuits.
Generally speaking, a co-op board is the governing body of a corporate entity which owns the property and is landlord. A condo board is in charge of management of common areas of the building, like hallways and recreational areas.
The extent of a condo board’s fiduciary duty is laid out in Section 18.4 of the Illinois Condominium Property Act, says Mathew Goldberg, an attorney with the Chicago-based law firm of Bancroft, Richman & Goldberg, LLC.
A board’s powers relative to cooperatives are primarily spelled out in the Illinois General Not for Profit Corporation Act or the Illinois Business Corporation Act, and in any given community’s bylaws under “board powers” and “duties and responsibilities.” Some of those responsibilities include keeping peace and order, maintaining adequate insurance coverage, making rules for the community, and carrying out other managerial duties.
Board members are usually untrained volunteers who learn on the job how to manage a community. In order to get the most while giving the most in this public service, board members should do some homework. They should familiarize themselves with the community’s bylaws and any other documents that govern the board’s authority. Some lawyers who serve co-ops and condos will offer a tutorial as a service to familiarize board members with the bylaws and other rules governing the community, giving an overview of board members’ duties. Even if a building’s consultants don’t offer such a tutorial, board members and residents should read up on it themselves.
“I suggest any board member read the entire Condominium Act, especially Section 18.4 for their duties,” advises Goldberg. “And they should absolutely read their own declaration and bylaws. Every unit owner should do that and understand what they’re buying in to. There are also local trade shows, like The Cooperator's and other ones that offer educational programming,” he adds.
A board must work to ensure the safety of the property and people in the community—but how many security measures are too many?
“In this day and age, it’s strictly going to be a judgment call,” says Gerald Cassioppi, an attorney with the Naperville-based law firm of Nyberg & Cassioppi, “and if they believe that it’s within their rights as far as what the documents say, I would still tend to err on the side of wanting to protect the property in a way that is not too intrusive.”
The public has shown a willingness to accept measures including CCTV, logbook sign-ins and security guards in lobbies and entry areas, though having a visitor twice show his or her identification to guards and then provide a social security number could be considered onerous, depending upon the style of the community such measures are intended to protect.
“Every building is different in terms of their needs, but when you’re dealing with high rises, having security cameras in common areas and having door personnel all makes sense, none of this would enter space of the unit owner. There shouldn’t be any cameras pointing into people’s units,” Goldberg says. “I did have a situation where someone wanted to put a camera on the outside of their building because people were throwing cigarette butts off of balconies and they wanted to catch it so they had to position the cameras so it would catch just the edge of the balcony if someone is throwing something off without pointing directly into anyone’s unit.”
Limiting the number and accessibility owners have to electronic key fobs is another example of the struggle boards face balancing security and privacy concerns, David Rudolph, an attorney with Chicago-based Rudolph Kaplan, says.
“Can the board say, 'We'll give you three key fobs, but if you want a fourth or a fifth, you've got to tell us the person's name, what their address is, what their phone number is, what there email is. We want to know who's having access to the building. Think about security, we want to know who is in there.' But what if a unit owner says, 'Well, I want to give it to my nanny, or there's a contractor doing work for two months,' the owner can say, 'You know what? We've got a problem if you want too much information,'” Rudolph says. “But I think a board would say, 'We want to know who is coming in and out of our building. And if they have keys to our front door, we want to know who they are and their personal information.' “What I recently advised my association is to, across the board, limit the number of key fobs a unit can have. But if they want more fobs, then they have to disclose who, what, where, when, and how with respect to that additional fob,” Rudolph says.
A logbook, which visitors must sign into and out of a community, could be seen by many folks as an innocuous practice. But that view could depend upon how the logbook is handled. Who can look at it? Can a board member come along and page through the logbook, and discover information about a resident who’s had repeated visits from a local oncologist, or from an attorney who specializes in co-op/condo disputes? To have such information about a neighbor might be considered to be an invasion of privacy.
“I think you would typically see whether it's an apartment building, or an office building, or what have you, that it's certainly for the security of the entire building to know who's coming in and out, and to have a visitor information sheet is certainly reasonable,” Rudolph says. “To the extent that the visitor information sheet required the visitor to put their email address, I don't know if you would have to do that. It's got to be a case-by-case basis. In an office building, you sometimes see security require your drivers license, and them taking down info, so I think that would be reasonable in a residential condominium. But there's certain personal information you probably wouldn't be entitled to,” he says.
Privacy is a serious matter, and the personal info of residents must not be shared by board members. Many industry insiders say never publish personal information such as a list of which residents are in arrears with maintenance fees, since it could be cause for a slander lawsuit. Having the wrong person’s name on such a list, or the incorrect amount next to a person’s name, could make the board and the community liable.
Just as residents expect to be safe and secure in their own home, they also presume that their personal information held by the building will be kept confidential and secure. Such data should be kept locked up and password protected, experts recommend.
Knock Before Entering
Common sense is needed when board members are enacting new rules, but others in the building must use their heads, too. Residents don’t expect nosy neighbors intruding on the logbook to scrutinize their visitors, nor do they want others poking around their condo. But according to a community’s bylaws, in certain cases, such as an emergency, building staff can demand entrance into an apartment or condo unit and even get the fire department to break down the door to get in if needed. Building workers have a right to enter a unit to fix problems such as plumbing leaks, electrical problems and other urgent maintenance issues that need to be addressed inside the home. Usually the unit owner is given at least a day of advance notice, but emergency admittance also can be required.
“By accepting title of the ownership they agree to grant access to the unit for certain legitimate purposes. If you have an emergency to the building, the building’s needs come first, end of sentence,” Goldberg says. “Certainly in an emergency like a leak, you’re not going to let the building go so you can get permission to get in the unit. You’re going to go in and fix the leak and protect the building.If it’s routine maintenance, there should be appropriate notice given, but the board must be granted access to perform its routine maintenance on common elements—sometimes it just requires getting into a unit,” he says.
Sometimes, odors coming from a condo are signs of troubles behind closed doors. In communities with a lot of retired people, a resident with dementia or some other malady night lose control of his or her faculties, creating an unhealthy and foul-smelling mess inside the unit. Finally, the stench creeps into the hallway and adjoining units and everyone’s complaining—until the building’s management must get help for the sick resident, who’s steadfastly refused repeated management offers of help.
When it comes to protecting the community, it can seem like there is no limit to what can be done, at least that is, with regard to what is expected of a building’s management. If board members know of a foreseeable harm that could be fixed on their properties, they must have it fixed, for themselves and for all of those who live in and frequent the place. However, the lines between a board being proactive and seemingly power hungry and privacy breaching can become blurred.
“In Illinois, there is a procedure for passing rules and regulations that requires the board to send out the proposed rules to all of the unit owners and call a unit owner meeting for the purpose of discussing those rules,” Goldberg says. “No quorum is required at that particular meeting, but the unit owners who are concerned about rules should come voice their opinions about any concerns they have. If the board is not appropriately representing the interest of the unit owners, the owners have the a right and duty to show up and vote and elect new board members if they don’t like the way the board is running the building.”
When in doubt about whether a board policy exceeds board authority, consult the pros. With the right advice from legal counsel, a competent property manager, or both, a board will avoid angering the community, or worse, a potential lawsuit.
“If they need independent party to take a look at it I would consult with their attorney if there is any question,” Cassiopi says. “This is often hard for a board to do, but I would err on the side of being conservative and not going beyond their authority unless they’ve really taken a close look at it.”
Unit owners should not forget they have power too, Cassioppi says.
“If challenging whether the rules and regulations are legal, they can certainly hire their own attorney. If the rule or regulation is legal and they want to challenge the policy, they can get on the board themselves and try to go through the process of getting the bylaws or the covenants or rules and regulations amended,” Cassiopi says. “The way it’s supposed to work is the board represents the individual members, and if I was an individual member I would be talking to my board members as elected representatives trying to get things changed, if that’s possible.”
Jonathan Barnes is a freelance writer and frequent contributor to The Chicagoland Cooperator. Editorial Assistant and staff writer Enjolie Esteve contributed to this article.