Does an agreement pass to next owner?
Q: The declaration for our condominium association specifically allows owners to enclose the limited common element terrace serving their unit, with approval of the board. Our declaration does not provide for limited common element charge backs. The board is willing to approve these requests if the owner agrees in writing to be responsible for the maintenance, repair and replacement of the enclosure.
Will such an agreement govern future owners of the unit?
A: An agreement of this sort between an owner and the association is a personal undertaking of the current owner only. It would not automatically be applicable to or binding on a future owner of the unit.
That said, action can be taken to bind future owners of the unit to the agreement. The agreement needs to expressly provide that the agreement and covenants run with the property and are binding on future owners. Importantly, the agreement must also be recorded against the unit in question with the county recorder of deeds.
Then, the agreement will be binding on future owners of the unit.
Q: The proxies for our association's annual meeting to elect directors include a blank line for an owner to appoint a primary proxy holder. The proxy also includes the board secretary as a secondary proxy holder. Many owners don't fill in the blank, so the secretary is their proxy holder. The completed proxies are then sent to the association. What happens if the proxy holder does not attend the meeting?
A: If the appointed proxy holder does not attend the annual meeting, the proxy could not be used to cast votes as the proxy holder would not be present to act.
If a proxy holder knows he or she is not going to be able to attend the meeting, the proxy holder should advise the owner who gave them the proxy to appoint another proxy holder. Alternatively, given the power of substitution in most proxies, the proxy holder who will not attend should designate another person who will attend the meeting to be the proxy (this substitution is to be done in writing).
If a board member (a secretary in this case) is the "default" proxy holder, and intentionally does not attend the meeting wherein they know they are the designated proxy holder, that could arguably be considered a breach of fiduciary duty.
Q: I'm having a disagreement with my homeowners' association and its management company. The board meeting minutes for the last two years took an average of about three months to post. I have been brushing up on association law. My understanding is meeting minutes should be posted within 30 days of the meeting. I have brought this up with the management company; however, they have not complied. Please correct me if I am wrong.
A: The law does not require meeting minutes be prepared within any specific time frame. Further, while approved minutes are generally available for examination and copying by owners, an association is not required to "post" meeting minutes. That said, many associations do publish approved meeting minutes on an association website.
Minutes of a board meeting need to be approved by the board. "Best practice" is that board meeting minutes be approved at the next board meeting. That might be next month, or next quarter, or some other time, depending on when the next board meeting occurs. Once approved, the minutes are required to be available for examination and copying by owners. If the person preparing the board meeting minutes is unable to have a draft prepared by the next board meeting, the board should probably have someone else prepare the minutes.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.