N.L. from Illinois writes:
Dear Mister Condo,
I have a similar situation as described in your question and answer entitled “Can Condo Association Collect Misappropriated Funds Paid for Deck Repair 2 Years Ago?” (https://askmistercondo.com/can-condo-association-collect-misappropriated-funds-paid-for-deck-repair-2-years-ago/) In 2012, our association informed us it was going to replace our sliding glass doors at the cost of $4600. Prior to making the decision the board consulted with an attorney who reviewed our declarations and by laws. He stated (3 separate times) that due to ambiguities between our declarations and by laws the association should treat the sliding doors as common elements. In January of 2013, a new board was elected and in April of 2013 issued a resolution stating that sliding glass doors (amongst other things) were not considered common elements any longer. In September of 2013, we received a letter from the association stating that the legal opinions we received were flawed and due to that we are to repay the association $4,600.00. We never requested the doors, attended any meeting where they were discussed. We received a call from the management company telling us they were replacing our doors and our neighbor’s doors. The neighbors were the ones who initiated the request. Does the association have the right to charge us back? If they weren’t considered common elements in the first place why did they issue the Resolution? Also they are not asking any other unit owner that has work done to what they now consider Limited Common Elements over the last 17 years to repay the association. Can they retroactively and selectively enforce their decision? We offered to supply them with an additional legal opinion but I think regardless of what it says I feel they will assess back the costs? What are our rights? Any help would be appreciated. We live in IL as well.
Mister Condo replies:
N.L., Greetings from Connecticut and sorry to hear about your predicament. I am not an attorney nor do I reside in your state so my first-hand knowledge of Illinois-specific law is quite limited. However, I do have some friendly advice to offer so here goes. There are times when I suggest condo owners seek experienced legal counsel to assist in their legal queries. Clearly, this is one of those times. Your question concerns me on many levels. First and foremost is the question of common, limited common, and unit owned amenities. Something as specific to your personal use would likely be unit owned or limited common element. That is not to say your condo documents don’t address the issue but if a qualified attorney gave an opinion in 2012 that claims the sliders should be treated as common elements, what changed in less than two years that made the Board reverse that finding? Even if the current Board is correct in treating the sliders as limited common elements, there is now a major issue with what had been done previously. Also, if they just passed the resolution, I would think it would prove quite difficult for them to go after any unit owner for repairs or replacements performed prior to the passing of the resolution. There is also the issue of how they passed this resolution. Did they follow the procedures as outlined in your governing documents? These are all questions for a community association attorney to answer and even bring suit if it becomes necessary to involve the courts in sorting this mess out.
On the flip side, you did receive brand new glass sliding doors which are primarily for your enjoyment. Yes, they also enhance the building’s exterior but they will undoubtedly save you energy expense and look beautiful for years to come, inside and out. The $4,600.00 for the sliders is not unreasonable in my opinion but selectively choosing who should pay and who should not is not good governance. There needs to be very specific language in their resolution that states from the date the resolution was passed forward. If that language is there and you had your sliders installed after that and everyone else who has had similar repairs done from that date forward is being billed the same then it may be fair and square. I assume your neighbors who had their sliders done at the same time you did have been billed as well.
The bottom line is that condominium associations are governed by volunteers. Most are well-intentioned; not all are well-informed. You have an excellent resource in your backyard at the Illinois Chapter of the Community Associations Institute. (http://www.cai-illinois.org/). I strongly encourage you to visit their website and reach out to some local knowledgeable experts for guidance. I counted 35 member attorney firms. These attorneys specialize in community association law so they are your local experts. I wish you all the best in putting this hoopla behind you. At least you can enjoy your new glass sliders.