By Deborah Goonan, Independent American Communities
The right to access contact information of co-owners is under assault, and industry trade group members continue to oppose fair treatment of condo owners who prevail in litigation involving their association.
Amends the condominium act to specify that no member, including persons on the board of managers, may sell or use the association’s official contact list for commercial purposes.
Full text of HB4816
HB5126 / SB3165
These companion bill amendments are an attempt to undo last year’s amendment that makes condo association contact information, specifically phone numbers and e-mail addresses, available to all condo owners who wish to contact co-owners with regard to association business.
Last year’s amendment was intended to assist condo owners in campaigning for a seat on the board or to discuss important policy or financial issues with co-owners.
However, condo association attorneys have opposed this move to create transparency. They point out that providing email and phone number information is an “invasion of privacy” for owners that “don’t want to be bothered” with politics of the association.
This year, the proposal backed by the condo industry makes the following addition:
SB3165 – 27 – LRB100 17779 HEP 32957 b
(g-5) When collecting the information required in
subdivision (7) of subsection (a), the association shall
provide each member with the opportunity to specify whether the
association may disclose the name, address, email address, or
telephone numbers of the member to other association members in
accordance with subsection (e). If a member indicates that he or she does not want the information disclosed to other members of the association, the information shall not be disclosed
under subsection (e). The association shall impose a fine upon
any person who discloses the information in violation of the
expressed wishes of the member.
While it makes sense to allow each condo owner to be the gatekeeper of contact information, this proposal essentially creates two separate contact lists — one accessible to the board and managment, and one accessible to everyone else. Plus, it’s an “all or nothing” choice the owner has to make, even though mailing address would otherwise be public record.
The addition of yet another excuse to fine condo owners is particularly troublesome. How will the association prove a contact information disclosure violation? Or, rather, how will the accused prove that no such disclosure was made?
The Illinois Legislature would do well to consider a more reasonable and workable amendment. For example, Florida’s Condominium Act handles access of contact information and unit owner privacy as follows: (emphasis in bold)
(12) OFFICIAL RECORDS.—
(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:
1. A copy of the plans, permits, warranties, and other items provided by the developer pursuant to s. 718.301(4).
2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.
3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.
4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.
5. A copy of the current rules of the association.
6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners, which minutes must be retained for at least 7 years.
7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the electronic mailing addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the electronic mail address or facsimile number for receiving electronic transmission of notices.
Notice the difference: Florida statute maintains one contact list, and each owner has access to that list. The unit owner chooses whether or not to provide a telephone number. Likewise, the unit owner can opt-in or opt-out of providing an email or fax number to receive electronic notices from the association.
When an owner opts-in to electronic notices, then the email address becomes part of the official records of the association, and co-owners have the legal right to use email addresses to communicate with those co-owners about official business matters in the association. If an owner chooses not to provide an e-mail, co-owners can still contact the owner using snail mail.
In this way, the right of the unit owner to prevent unwanted emails or phone calls is preserved, while the right of all co-owners to contact each other is also preserved.
Read full text of SB3165
For the second year in a row, condo owners and advocates are attempting to level the playing field for condominium owners in Illinois involved in litigation with their association.
Current statute allows the association to recover its legal fees when it prevails in a lawsuit. But condo owners are fully responsible for their attorney fees, even if the courts rule in their favor.
These companion bills would compel condo associations, if so ordered by the court, to award condo owners their attorney fees when they prevail in litigation.
In all likelihood, the majority of condo owners believe the “English Rule” is only fair. And the Illinois Senate has received 44 Witness Slips in favor of this amendment. However, industry lobbyists have used email blasts to contact their trade group members, yielding 107 Witness Slips opposed.
See witness lists here.
Notice that industry professionals such as condo association attorneys, management company CEOs, and representatives of Community Associations Institute are among the opponents of fair play.
And, if you look beneath the surface, the witnesses representing condo associations are, for the most part, actually property managers, real estate brokers, or condo board Presidents. In other words, the people opposed to having to pay the attorney fees of an owner that wins in court just so happen to be the people who are either most likely to be defendants, or most likely to make their living from serving condo associations involved in legal disputes.
The unfortunate fact is that community association-related trade groups are more organized and more politically connected than homeowners in the state of Illinois.
But that doesn’t make their political views on consumer protection legislation “right” or in the best interest of the public.
Read Full Text SB2566