By Deborah Goonan, Independent American Communities
Several 2018 Illinois bills, and angst over homeowner protections enacted in 2017, are stirring up controversy in Chicago and statewide.
HB 5126 / SB3165
Last year, state law (Public Act 100-0292) was amended to provide condo unit owner access to contact information of co-owners, including names, addresses, phone numbers, and emails, for the limited purposes of conducting or discussing association business.
Some condo owners and community association attorneys objected to the language of the law, citing concern for protecting the privacy of owners who might not wish to share their personal contact information.
These companion bills would allow the unit owner to be the gatekeeper of personal information, by opting to exclude all or part of contact information to be shared with owners other than the board of managers.
The association would have the authority to impose a fine upon any member who discloses information “in violation of the expressed wishes of the member.”
While allowing a member to control access to personal information is certainly reasonable, granting authority to the association to impose monetary fines for inappropriate disclosure, particularly in the absence of third-party judicial process, could open the door for abuse of power that could have a chilling effect on communication.
In any organization, accurate and up-to-date membership directories are notoriously challenging to maintain.
If enacted as law, either bill could undo last year’s attempts at increasing unit owner participation. Fearing they might be fined for inadvertent use of non-current contact information, owners would like be discouraged from requesting access to a directory of unit owners in the first place.
Track HB 5126
Track SB 3165
Here’s another attempt to undo last year’s law expanding condominium member access to a directory of owners, including names, addresss, phone numbers, and emails.
This proposed amendment eliminates the obligation of the condominium association to provide access of certain member directory records of the association to unit owners (members), notably, emails and phone numbers of co-owners.
The end result would mean that only board members would have access to email addresses and phone numbers, making it easy for the board to communicate with members, but much more difficult for other members to communicate with each other.
Read and track SB 572
HB 5744/ SB 2556
Two important homeowner protection bills propose that a unit owner be entitled to recover attorney fees, if ruled by a court to be the prevailing party in litigation. The bill pertains to all types of civil litigation, including cases involving association collections of purported debts of an association member.
Proponents hope to level the playing field for unit owners/shareholders in legal disputes with their condo and homeowners’ associations.
Current law allows an association to recover attorney fees if it prevails in litigation, but does not allow a unit owner an equitable legal privilege, of his or her case is proven to have merit.
Industry opponents of these amendments claim that associations will lose money litigating collection of assessments, fees, and fines.
However, if a unit owner’s legal claims prove the association has erred in judgment, or, worse, has abused its power, it seems only fair that the homeowner should be reimbursed for attorney fees.
The 2018 session bills are identical to HB 3755, introduced in 2017.
Identical bill SB 2556
HB 4910 (next hearing April 10, 2018)
A few vocal condo owners in the Windy City complained about the fact that their neighboring condo owners might be provided with access to their phone numbers or email addresses. Apparently, I’ve been told, some owners simply don’t want to be bothered by important condominium business matters such as upcoming elections, budget discussions, or proposed amendments to governing documents.
Rather than attempt to discourage apathy among owners, Aldermen Brendan Reilly and Brendan Hopkins chose to enact a city ordinance to get around state law.
The Substitute Ordinance gives only board members full access to unit owners’ names, addresses, email addresses, telephone numbers, and weighted votes of all members entitle to vote.
All other unit owners of condominiums located in the City of Chicago are prohibited from access to all of the above listed information!
The condo association may opt out of this draconian measure, but only by a 2/3 vote of all unit owners. Of course, obtaining supermajority vote on any issue is quite difficult for most condo associations.
In case the reader thinks I must be mistaken, I’ve included a copy of the amended ordinance in the window below.
As a response to City Council’s abuse of its Home Rule powers, Rep. André Thapedi has introduced HB 4910, which basically states that local governments cannot override certain state laws governing association-governed common interest communities.
Synopsis As Introduced
Amends the Common Interest Community Association Act. Limits the concurrent exercise by units of local government of powers and functions exercised by the State with respect to amendments to the community instruments and accounting practices. Amends the Condominium Property Act. Limits the concurrent exercise by units of local government of powers and functions exercised by the State with respect to an association’s: budgeting practices; sale of property; notice requirements; contracts with board members; voting procedures; property improvement procedures; accounting practices; collection and sharing of records; amendment to the condominium instruments; and subdivision or combination of units. Effective immediately.
Read and track HB 4910
In addition to a committee hearing on HB 4910 scheduled for April 10th (8:00 A.M.), Thapedi plans a hearing on a “trailer bill” to HB 189 on April 2nd at 10:30 A.M., to discuss matters pertaining to unit owner access to records, as well as unit owner recovery of attorney fees.
California Bill of Rights, a stark contrast to Illinois statute that limits open communication among members
In 2017, California enacted a common interest development bill of rights that gives owners the right to use association common areas and communication venues to campaign for a seat on the board or about political issues affecting their association.
Illinois and all other states in the U.S. could benefit from enacting similar legislation.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4515 is added to the Civil Code, to read:
4515. (a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.
(b) The governing documents, including bylaws and operating rules, shall not prohibit a member or resident of a common interest development from doing any of the following:
(1) Peacefully assembling or meeting with members, residents, and their invitees or guests during reasonable hours and in a reasonable manner for purposes relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes.
(2) Inviting public officials, candidates for public office, or representatives of homeowner organizations to meet with members, residents, and their invitees or guests and speak on matters of public interest.
(3) Using the common area, including the community or recreation hall or clubhouse, or, with the consent of the member, the area of a separate interest, for an assembly or meeting described in paragraph (1) or (2) when that facility or separate interest is not otherwise in use.
(4) Canvassing and petitioning the members, the association board, and residents for the activities described in paragraphs (1) and (2) at reasonable hours and in a reasonable manner.
(5) Distributing or circulating, without prior permission, information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members and residents at reasonable hours and in a reasonable manner.
(c) A member or resident of a common interest development shall not be required to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy, in order to use a common area for the activities described in paragraphs (1), (2), and (3) of subdivision (b).
(d) A member or resident of a common interest development who is prevented by the association or its agents from engaging in any of the activities described in this section may bring a civil or small claims court action to enjoin the enforcement of a governing document, including a bylaw and operating rule, that violates this section. The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.