Serving on a condo board has its challenges—mostly of a relatively mundane, everyday sort, like how to pay for new carpet in the clubhouse, or what kind of flowers to put in the new beds out front. Occasionally however, a much more sensitive issue comes along, involving potentially volatile legal or security situations, like residents with restraining orders or serious criminal histories. How such issues are handled is of crucial importance, and can impact not just a community's administration, but its morale, cohesion, and ultimate value.
Experts agree that if a board member or manager is advised by a resident that a crime is going to be or has been committed, he or she should advise the resident to call the police immediately, and take any further direction from law enforcement authorities. Generally speaking, there is legal principle that one party is not liable for the criminal actions of another (absent collusion, agency or the like). However, the condominium documents may also define the obligations of the board to a certain extent.
Experts agree that whenever sensitive topics arise, the board should proceed with great caution.
“Board members and property managers need to be very careful not to discuss or post written information about the membership about an owner’s past criminal background, and they certainly have no business discussing the personal financial or family matters of any member,” cautions Allan Goldberg, partner and co-chair of the Real Estate Practice Group of the law firm of Arnstein & Lehr, LLP in Chicago. “Slander and libel exposure should be explained to association representatives before they speak or write defamatorily about a member. We have seen board members sued for tortious interference with contracts in chasing away an owner’s renter by publishing derogatory remarks about the renter to the residential community at large. Such behavior may also implicate allegations of fair housing laws, including the Illinois Rights Act.”
“I have followed the advice of our attorneys over the years and I’ve told board members to do the same—and that is basically to keep a tight lip on it,” says Michael Rutkowski, president of First Community Management in Chicago. “You say something wrong, incorrect or inaccurate and that person could come at you with a defamation suit. We discourage rumor spreading and gossip.”
“If a board member says something that’s false they could be subject to defamation,” adds Patrick T. Costello, a partner with the law firm of Keay & Costello, PC in Wheaton. “If they disclose something and the only reason they have this information is because they are on the board, they could be subject to invasion of privacy claims. On the other hand, if it's public information—like somebody filed for divorce, or someone was convicted of a crime—then it's information that anyone could get, and therefore it’s not private.”
If a board member or manager is advised by a resident that a crime is going to be or has been committed, he or she should advise the resident to call the police and take direction from law enforcement authorities.
“My assumption is that property managers and boards of directors may be more aware of security issues than the general population of the association,” says David M. Bendoff, a principal with the law firm of Kovitz Shifrin Nesbit in Buffalo Grove. “This sort of information usually trickles its way to the manager or board through the grapevine or via gossip, rather than through direct communications from the parties involved or via or formal process. That said, something like domestic violence may be brought to the attention of the association as the result of noise complaints from other residents.”
“In most cases board members are not aware of things like acrimonious divorces, restraining orders and felony convictions within their building,” says Costello. “Unless it’s brought to their attention, I wouldn’t suggest they find out that information out.”
“There have been acrimonious divorces that have been put in our faces but generally speaking we are not aware of issues like restraining orders and felony convictions,” adds Rutkowski. “Generally we are made aware during some reportable incident. For example, we had an incident once when we had the police come in and break down the door of a unit because it turned out the unit had 40 pounds of marijuana in it. We had no records of them selling it, and we had no idea they were felons.”
“A conscientious board does not have to wait until a crisis occurs,” says Goldberg. “The board can be proactive in disseminating local municipal websites which can be very informative as to crime prevention and protection. The board should encourage local government to create appropriate programs and work jointly with the association board and management to keep crime out of the community. In most cases, managers and boards do not know about the criminal background of a prospective resident, and society presumes that if you paid your debt through incarceration, you should be able to integrate back into society. Municipal websites actually have good and current information on the subject of crime prevention, deterrence, and protection from threatened criminal acts. Boards and managers should involve local police and municipal officials to present an owner session on crime prevention and crime reporting.”
Sometimes, a board member may speak up and talk to neighbors about one of these sensitive issues, and that could be problematic for both them and the condo association itself. “The law in Illinois as to the duty of the associations with respect to the criminal conduct by third persons is not settled. That being the case, we can look at the case law concerning the landlord and tenant relationship for guidance,” says Bendoff. “The general rule is that an association does not owe residents a duty to protect them from criminal acts of third parties that occur on the association premises. The exceptions to this general rule, which can overshadow the rule, don’t necessarily impose a duty to warn owners that a convicted felon resides in the association.”
“It’s important to temper the vitriolic diatribes of those board members who cannot seem to control themselves from running off at the mouth at open board meetings or in board written communications and newsletters,” says Goldberg. “Yes, there can be adverse legal consequences.”
Thieves and Predators
There is no law against registered sex offenders living in a condominium or homeowner associations In Illinois, but the state does have a number of statutes concerning sexual predators including the Sex Offender Act, the Sex Offender Registration Act, and the Child Sex Offender Act.
“What is a major problem is when offenders take up residence in associations that have families with children in them,” says Goldberg. “Offenders are prohibited from approaching or communicating with a child in a public park. Sex offenders must register with the state, and check in at least once annually. It is clear, however, that a community association cannot regulate by rule-making authority who may live on association property, and there are related state laws that protect individual residents from sex offenders, such as the Illinois Safe Homes Act. Consultation with knowledgeable counsel is key in dealing with such potentially volatile situations.”
“I don’t know how somebody could stop someone from purchasing a unit - and there is no law against a sex offender living in a condominium unit,” says Costello. “It’s the same thing if a sex offender wanted to move in next door to a single-family home. I assume they wouldn’t be happy about it, but they can’t prohibit it.”
For another possible—if not probable—scenario, let’s say a condo or association has a situation like the one involving Bernie Madoff, where TV crews are running rampart on the property and residents feel they need extra security to be safe. Surprisingly, in most cases, it’s not the building’s responsibility to make that happen.
Experts agree that in a heightened risk situation the board may want to consider heightened security if it’s feasible. The common areas of a condominium complex are private property, which are generally administered by the organization of unit owners. If TV crews are on the property without permission, the police should be called to remove them.
The key to dealing with legally sensitive situations in a condo building or HOA is not so different from how more mundane issues should be addressed—use caution, know the rules and your responsibilities relative to them, and keep your own counsel. That will help, regardless of whether you're living in an unassuming walk-up or a gleaming skyscraper with 150 plus units.
Keith Loria is a freelance writer and a frequent contributor to The Chicagoland Cooperator. Staff writer Christy Smith-Sloman contributed to this article.