Can Treasure Legally Take Meeting Minutes?

TimJ8 (Illinois)
Posts: 56

Posted:

Can Treasure Legally Take Meeting Minutes?

Writing from Illinois, and SUBJECTED to Illinois law…

We have a situation where the Secretary seems uninterested in doing any work, and our Treasurer is writing Meeting Minutes all the time, and doing other Secretarial functions. Out bylaws state “The respective (meaning “Considered individually” from any dictionary) officers of the association shall have such power and duties…” the Illinois General Not For Profit Corporation Act Sec. 108.50. States “If the bylaws so provide, any two or more offices may be held by the same person.” Our bylaws do not “so provide” for one officer to hold the power of two positions. Our lawyer says it is OK if the Secretary approves it, but he has also said residents can be charged legal fees when they complain about the board violating the law, and he or an associate of his responds to the resident stating their complaint was not justified.

Thanks!

KerryL1 (California)
Posts: 14,550

Posted:

In some associations, the minute-taker isn't even an officer. I cannot imagine you or your Board getting into any kind of trouble if you or any other director writes the minutes instead of the secretary. What do boards do if the secretary is absent?

Your Board, however, may want to remove the secretary from office via a vote if your bylaws permit (most do), and appoint a different director as secretary.

Are you a director? An officer?

Our HOA attorney would never take a "case" from an individual owner against our board, and it sounds yours would? I think I would look for a different attorney. It's equally hard to imagine that any Owner would go to the trouble of litigating about a matter such as this. Or did I misunderstand you??

EmmaH1
Posts: 674

Posted:

TimJ,

If you have valid legal complaints against a board you would have to seek your own legal advice. The HOA/BOD's attorney is just that the attorney to defend the actions of the HOA association as a whole and the actions of the BOD. He/She will not help you, it is not their job.

That being said there should some sort of process in place for you to voice concerns without contacting the attorney directly.

In my opinion the complaint about who is taking the minutes would not be a very big deal in itself, unless there is more to the problem than just what you posted.

Emma

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By KerryL1 on 12/04/2014 3:57 PM
In some associations, the minute-taker isn't even an officer. I cannot imagine you or your Board getting into any kind of trouble if you or any other director writes the minutes instead of the secretary. What do boards do if the secretary is absent?

Your Board, however, may want to remove the secretary from office via a vote if your bylaws permit (most do), and appoint a different director as secretary.

Are you a director? An officer?

Our HOA attorney would never take a "case" from an individual owner against our board, and it sounds yours would? I think I would look for a different attorney. It's equally hard to imagine that any Owner would go to the trouble of litigating about a matter such as this. Or did I misunderstand you??

Thank you for the reply. Real quick history. I WAS elected to the board and elected Secretary. I tried to use my position to investigate past/present board members for abuses of power and using HOA money for personal expenses. I was removed from as Secretary, and replaced by a "place holder" who does not do anything. My former duties are mostly if not entirely done by the current Treasurer I believe against Illinois law and our bylaws. The lawyer say anything the board does is OK including saying the board can charge people legal fees for complaints while the lawyer responds to the resident.

KerryL1 (California)
Posts: 14,550

Posted:

Since I believe you have open record laws in IL, can't you still investigate the records you seek?

Well, wait to hear form others, but I don't think you have a case. Your Board has not appointed the treasurer AS secretary with its votes.

I also don't believe that the Board can charge you if for some odd reason your HOA attorney would represent you as an individual. You need to hire your own attorney, but, again, a waste of time, imo. (I'm not in the legal professions).

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By KerryL1 on 12/04/2014 3:57 PM
In some associations, the minute-taker isn't even an officer.

It is my understanding that anyone CAN take Meeting Minutes but the Secretary has the "POWER." If someone else does take meeting minutes they must sign them and state why THEY took the minutes other than their Secretary. This would only occur on rare occasions. Our "Secretary" will not sign our meeting minutes. I make objections that don't appear in the meeting minutes but are in the audio recordings of meetings. I guess she does not want to sigh minutes she did not write, and do not describe what actually went on at the meetings. Normally the Meeting Minutes are taken by the Secretary. If they regularly need "help" they must get a resident or director, not another officer with other respective or individual "POWERS" as it is a separation of powers issue. That is my understanding...

RichardP13 (California)
Posts: 1,767

Posted:

As a general rule and without knowing every states laws, anyone can take minutes. In the corporate world and most governing documents will state, the Secretary is responsible for taking minutes. In many larger association a paid recording secretary is used. BUT, the general rule is that the Secretary is the one signs the Minutes, once they have been approved by the Board. In California, there are strict rules for compliance and penalties for non-compliance.

TimB4 (Tennessee)
Posts: 21,059

Posted:

As Richard pointed out - The Secretary is responsible for making sure that they are taken. Anyone can physically take the minutes for the Secretary (or in the Secretaries absence).

Now, filling the position (not doing the tasks but being in the seat of responsibility) of Secretary may be a different issue, as many governing documents limit who may serve as the Secretary (example: same individual can't serve as President and Secretary).

KerryL1 (California)
Posts: 14,550

Posted:

TimJ, following Richard: are you saying that the Board does not approve the draft minutes at the next meeting?

Generally objections don't go into minutes, only motions and decisions. So are your "objections" part of the debate over the motions, or???

NpS (Pennsylvania)
Posts: 4,216

Posted:

Hi Tim

the first hurdle that you face (since you have raised the specter of legality) is understanding what relief you are likely to get and who is going to give you that relief (assuming that you are not going to get satisfaction from within your HOA). IMO, in more than 90% of all HOA claims that go to the courts, judges look at the parties as nothing more than squabbling neighbors and their HOAs at nothing more than corporation wanna-be's. And if the relief you seek from a judge is to instruct the Secretary to take the minutes, you will certainly accelerate that judge's conclusion that your case belongs in the 90% bucket.

As far as the HOA lawyer saying that you can be charged for legal fees, my guess is that you may be running up his bill by calling him with your complaints. He can't represent you individually - That would be a conflict of interest for him. And he can't ignore you if you are on the Board (This time-billing concern is the reason that most Boards set up a single point of contact on the Board to speak with the HOA lawyer). In reality, your HOA lawyer may be trying to tell you politely that just because you're a Board member, you shouldn't ignore the fact that you are running up the HOA's legal fees.

Your issue about lack of access to records could have merit before a judge. But the HOA is likely to counter that you are on a fishing expedition. And the judge will be assessing their claim based on how you present your issues.

So if you're going to pursue your claims through the courts, the biggest mistake you can make is presenting a laundry list of all your grievances. No one has the time, patience, or inclination to listen to it all. Run with your winning argument (failure to make certain records available) and forget about this loser (the note-taker wasn't the Secretary and my gripes weren't even mentioned in the minutes).

Your better choice would be to change the composition of the Board over time by recruiting fresh faces with fresh ideas. The old guard can be difficult for newcomers, but over time, they can be replaced.

Sikubali jukumu. Read all posts at your own risk.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By TimJ8 on 12/04/2014 3:13 PM

Our lawyer . . . has also said residents can be charged legal fees when they complain about the board violating the law, and he or an associate of his responds to the resident stating their complaint was not justified.

I would like to know what authority he relies on. In most states only a lawyer can charge for his fees and then only to his own client. The association is not a law firm and cannot charge legal fees. The attorney has no lawyer-client relationship with owners so he cannot charge owners for his fees. The lawyers fees are an expense to the association and have to be shared by all owners just like any other common expense.

Even if your governing documents provide for an owner being liable for reasonable attorney fees, the attorney has no authority to determine what is reasonable; that question is left up to the courts.

This lawyer is poison. You might want to consider filing a complaint against him with the State Bar.

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By LarryB13 on 12/04/2014 5:39 PM

This lawyer is poison. You might want to consider filing a complaint against him with the State Bar.

I have filed two complaints against him but was told to sue. This all started when the unit owner above my head would not stop a leak. The leak continued for months. I contacted the HOA who said I'm on my own even though Illinois law states the following:

Sec. 18.4. The powers and duties of the board of managers shall include, but shall not be limited to, the following:...

(j) To have access to each unit from time to time as may be necessary for the maintenance, repair or replacement of any common elements or for making emergency repairs necessary to prevent damage to the common elements or to other units.

I wrote back quoting the law and received a letter saying my interpretation was incorrect. I was then charged hundreds of dollars in legal fees. I found out there is a "charge back" rule where the lawyer "codes" certain bills and informs the HOA accounting company to charge individuals directly according to a "rule" set up by the HOA, instead of charging the association directly to have their lawyer address a resident complaint.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I would disagree to an extent. The Association attorney per my discussion with a few honest ones ... They pointed to the fact the attorney is responsible for representing the best interest of all owners equally. The association means all owners not just the BOD. If the association is forced to go after an owner not in compliance, then is where other party needs separate representation as the majority of owners are being violated by the one and the attorney is responsible for representing the majority.

Now the issue is the BOD is the entity who can contract and authorize to spend association funds, not an individual owner. However, if the OP contacted the attorney I do not see why the attorney cannot state up front that he can answer questions but the OP would have to pay for his own personal information requested and provided.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Is the leak fixed? And how long ago was this issue?

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By JanetB2 on 12/04/2014 6:11 PM
I would disagree to an extent. The Association attorney per my discussion with a few honest ones ... They pointed to the fact the attorney is responsible for representing the best interest of all owners equally. The association means all owners not just the BOD. If the association is forced to go after an owner not in compliance, then is where other party needs separate representation as the majority of owners are being violated by the one and the attorney is responsible for representing the majority.

Now the issue is the BOD is the entity who can contract and authorize to spend association funds, not an individual owner. However, if the OP contacted the attorney I do not see why the attorney cannot state up front that he can answer questions but the OP would have to pay for his own personal information requested and provided.

The attorney contacted me stating the HOA did not have to stop the leak or prevent damage to "other units" as the law so dictates. I was then charged hundreds of dollars. I ran for the board to clean things up, but am having trouble.

I agree. Lawyers ultimately represent the people who pay them, or the residents. Therefore they should not advise, or defend the illegal activity of individual board members. In my case the boaurd simply did not want to do what the law prescribes (making the owner stop the leak that had been going for months), and got the lawyer to tyell me something tha was not true, and charge me for the pleasure.

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By JanetB2 on 12/04/2014 6:16 PM
Is the leak fixed? And how long ago was this issue?

The owner finally fixed the leak. I was never sent a letter explaining the charge. The charge simply appeared on my statement which is paid automatically through auto draft. So..., I don't look at the statement much since it never changes. About a year later I received a collection letter stating I owed $588 for not paying the legal fees (paying for the lawyer to respond to my complaint), and $75 for the collection letter. I was told I had to pay by a deadline, or I could loose the right to occupy my condo. I was to be out-of-town on the deadline so I paid...

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By TimJ8 on 12/04/2014 6:28 PM

Posted By JanetB2 on 12/04/2014 6:16 PM
Is the leak fixed? And how long ago was this issue?

Issue started about 2 years ago, and I paid a little over a year ago.

JanetB2 (Colorado)
Posts: 4,219

Posted:

How long ago and did you pay the bill? I agree with you based on these new facts you presented if true that the association should not have charged you for the BOD problem. Since you have upstairs neighbor you are probably in a condo correct?

EllieD (Vermont)
Posts: 446

Posted:

TimJ8,

As others have stated, most anyone can take and “write up” the Board Meeting Minutes. And as already stated the Board has to approve the “draft” minutes before they become the Official Minutes.

However, what is most important, IMO, is that “correct” Minutes be written. That is, the Minutes need to contain the important details such as date, time of the meeting, Directors Present, Officers Present, quorum in attendance, time of adjournment of the meeting, etc.

And in between the “Minutes Text” should contain the exact words of Motions made, and passed, and any other decisions made and agreed to. Reports given, but usually only brief summaries, etc.

There are a number of good “sample minutes” for HOA and Condo Boards that can be found by doing an internet search. The California Davis Sterling Site (www.davis-stirling.com), while not Illinois, has a very good discussion re: what belongs in the Minutes and what does not.

In addition to whomever is actually "producing" the Minutes, all the Directors should also understand what should be in the Minutes, and what should not, since they, the Board, need to approve the Minutes.

After the Minutes have been approved, there can be a brief hand written statement at the end of the Minutes, just above the signature line stating “the above Minutes were approved at Board Meeting held on such and such date”.

Why do you question the ”legality” of the Minutes currently being written?

What is NOT being included – or what IS being included – incorrectly?
----------------------------

Now you write: “This all started when the unit owner above my head would not stop a leak. The leak continued for months. I contacted the HOA who said I'm on my own even though Illinois law states the . . . . .

How does that tie in with your initial post, which was asking about “who can record” the Minutes, if the Secretary choose not to?

JanetB2 (Colorado)
Posts: 4,219

Posted:

With that time frame may have issue of statute of limitation. And it might at this time cost you more to continue pursuing than what you paid. If it had been me at the time I was charged I would have had my attorney draft a letter telling the HOA attorney where to stuff his fee that I was not responsible for paying. I also would have included a bill for my repairs due to a leak not from my unit and not timely fixed as required.

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By EllieD on 12/04/2014 6:38 PM

Now you write: “This all started when the unit owner above my head would not stop a leak. The leak continued for months. I contacted the HOA who said I'm on my own even though Illinois law states the . . . . .

How does that tie in with your initial post, which was asking about “who can record” the Minutes, if the Secretary choose not to?

Well it's a long story that duck tailed. Al this happened to me and I got elected to the board to clean up. I was Secretary, and then was removed, and replaced by a "place holder" that does not do any work. The Treasurer does it all and I think that is illegal as it is a violation of separation of powers.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimJ8 on 12/04/2014 6:04 PM
I have filed two complaints against him but was told to sue.

If you filed a complaint with the State Bar and they said to sue, they are telling you that they don't see anything in your complaint that would trigger a disciplinary action against the lawyer.

Quote:

Posted By TimJ8 on 12/04/2014 6:04 PM
Illinois law states the following:

Sec. 18.4. The powers and duties of the board of managers shall include, but shall not be limited to, the following:...

(j) To have access to each unit from time to time as may be necessary for the maintenance, repair or replacement of any common elements or for making emergency repairs necessary to prevent damage to the common elements or to other units.

18.4 seems to be a mixed list of both powers and duties of the board. (j) seems to be about the power of access that the board has under certain circumstances. It does not look like (j) describes any duty that the board must perform. So I can see where someone might tell you that your interpretation is incorrect. Powers are different than Duties, and just because the heading says "powers and duties" does not make every item on the list a duty.

Quote:

Posted By TimJ8 on 12/04/2014 6:04 PM
I was then charged hundreds of dollars in legal fees. I found out there is a "charge back" rule where the lawyer "codes" certain bills and informs the HOA accounting company to charge individuals directly according to a "rule" set up by the HOA, instead of charging the association directly to have their lawyer address a resident complaint.

What are you doing calling the HOA lawyer as an individual HO? No Board members in their right minds would give residents free and open access to the HOA lawyer. My Board has lengthy discussions before we bring anything to the HOA lawyer - And we don't bring many issues that we could to him because we don't want to spend money we don't have to. But you seem to think that the rest of your community should be paying for your phone call. Technically, there may be things wrong about the way your board is handling things, but that does not negate the issue - Don't call the HOA lawyer without authorization from the board, and if you do, you should pay for it out of your own pocket.

Sikubali jukumu. Read all posts at your own risk.

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

If you filed a complaint with the State Bar and they said to sue, they are telling you that they don't see anything in your complaint that would trigger a disciplinary action against the lawyer.

18.4 seems to be a mixed list of both powers and duties of the board. (j) seems to be about the power of access that the board has under certain circumstances. It does not look like (j) describes any duty that the board must perform. So I can see where someone might tell you that your interpretation is incorrect. Powers are different than Duties, and just because the heading says "powers and duties" does not make every item on the list a duty.

What are you doing calling the HOA lawyer as an individual HO? No Board members in their right minds would give residents free and open access to the HOA lawyer. My Board has lengthy discussions before we bring anything to the HOA lawyer - And we don't bring many issues that we could to him because we don't want to spend money we don't have to. But you seem to think that the rest of your community should be paying for your phone call. Technically, there may be things wrong about the way your board is handling things, but that does not negate the issue - Don't call the HOA lawyer without authorization from the board, and if you do, you should pay for it out of your own pocket.

1. I think the lawyer is political connected. I filed two complaints and both were answered by the same person. I did not advertise the complaints and the lawyer found out. The disciplinary commission states they will only forward the complaint to the lawyer if they want them to respond. If it was "frivolous" the complaint would not have been forwarded.

2. The preference to "J" states the following:

"Sec. 18.4. Powers and duties of board of managers. The board of managers shall exercise for the association all powers, duties and authority vested in the association by law or the condominium instruments except for such powers, duties and authority reserved by law to the members of the association. The powers and duties of the board of managers shall include, but shall not be limited to, the following:"

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2200&ChapterID=62

Or, "The board of managers SHALL exercise for the association ALL powers, duties and authority vested in the association by law," meaning there are no optional powers since the association "SHALL" exercise "ALL POWERS"

3. I complained to the board. The lawyer answered the complaint and charged me for complaining the board did not do what they "shall" do.

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By JanetB2 on 12/04/2014 6:31 PM
Since you have upstairs neighbor you are probably in a condo correct?

yes

JanetB2 (Colorado)
Posts: 4,219

Posted:

Instead of discussing here you need to discuss issues with your neighbors. How do they feel about the association and how it is being ran? If you were elected then there were individuals who must have voted for you. How do they feel about you being removed from your position? If others feel same as you the. You all need to join forces to affect change.

BTW - I would love to see what statute they are claiming if you did not pay the attorney fee you would not be able to occupy the property you own. There are certain due processes required for that to happen.

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By JanetB2 on 12/04/2014 7:36 PM
Instead of discussing here you need to discuss issues with your neighbors. How do they feel about the association and how it is being ran? If you were elected then there were individuals who must have voted for you. How do they feel about you being removed from your position? If others feel same as you the. You all need to join forces to affect change.

BTW - I would love to see what statute they are claiming if you did not pay the attorney fee you would not be able to occupy the property you own. There are certain due processes required for that to happen.

Agreed. I just wanted to know the legality of one officer doing duties of 2nd officer. Before this all started there were 3 people on a 7 person board. The board last year met 3 times when law requires 4 meetings a year. The president did whatever they wanted and claimed their word was that of the BOD, or Board of Directors. I think, but can't prove few people were somehow making money, and the residents weren't paying attention. They messed with the wrong person when they messed with me. I am trying to turn resident attention toward the board, but tough...

JanetB2 (Colorado)
Posts: 4,219

Posted:

If you are looking for legal advise you need to consult with an attorney. We are not attorneys and can only advise based on our experiences and knowledge. My personal opinion is others can fill in for a position as needed. When one officer is maybe sick for extended period someone would have to do the job ... does not really matter who.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By TimJ8 on 12/04/2014 3:13 PM
Can Treasure Legally Take Meeting Minutes?

.... Our lawyer ..has also said residents can be charged legal fees when they complain about the board violating the law, and he or an associate of his responds to the resident stating their complaint was not justified.

1-Most of the discussion above centres on the recording of Board decision making. Your jurisdiction may legislate important specific functions onto the Secretary such as by-law certification for registration purposes.

2 A bad combination is the legislated power of (super-)liening in the hands of those who fail to grasp that it usually has no legal basis anywhere to enforce mere allegations of unproven civil claims against an owner. After the IRS etc, on the grounds of an UNPROVEN, non-judicial civil damage claim or buckshee penalties, how many government bodies or civil disputants are allowed untrammeled power to suck equity and potentially to expel an owner ?

One notorious case here originated in an accusation of hallway carpet stain arbitrarily made against a highrise condo owner who paid a $75 cleaning fee under protest. That accused (denier) was astounded 4 or 5 weeks later to now get a lien-threat letter under-signed by the corporation's lawyer together with an additional demand for approximately $ 500. more for such letter. In the absence of specific legislated authority for such, this looks like a gross and illegal abuse and possibly an indicator that minor compliancing may be like a self-funding concession without cost to the corporation itself ( or possibly even a minor revenue source ).

More shocking is the ignorant defences of such buckshee demand letters, including that our decades- old(voodoo)onsite documents trump the jurisdiction's law. Or that it becomes less illegal if it is rarely done. Or that if management is too stupid then "the law is a gray area" so we can do anything we want. Or merely that we can do whatever we want . . .

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimJ8 on 12/04/2014 7:18 PM

If you filed a complaint with the State Bar and they said to sue, they are telling you that they don't see anything in your complaint that would trigger a disciplinary action against the lawyer.

18.4 seems to be a mixed list of both powers and duties of the board. (j) seems to be about the power of access that the board has under certain circumstances. It does not look like (j) describes any duty that the board must perform. So I can see where someone might tell you that your interpretation is incorrect. Powers are different than Duties, and just because the heading says "powers and duties" does not make every item on the list a duty.

What are you doing calling the HOA lawyer as an individual HO? No Board members in their right minds would give residents free and open access to the HOA lawyer. My Board has lengthy discussions before we bring anything to the HOA lawyer - And we don't bring many issues that we could to him because we don't want to spend money we don't have to. But you seem to think that the rest of your community should be paying for your phone call. Technically, there may be things wrong about the way your board is handling things, but that does not negate the issue - Don't call the HOA lawyer without authorization from the board, and if you do, you should pay for it out of your own pocket.

1. I think the lawyer is political connected. I filed two complaints and both were answered by the same person. I did not advertise the complaints and the lawyer found out. The disciplinary commission states they will only forward the complaint to the lawyer if they want them to respond. If it was "frivolous" the complaint would not have been forwarded.

*** The disciplinary board of your State Bar concluded that there was NO basis for a disciplinary action against the lawyer. They may have asked him to respond. Maybe not. They may have decided that your complaints were in fact "frivolous" after they got the lawyer's response. Personally, I think they would probably notify the lawyer about every complaint, but maybe what you heard is true. So what? So what if he has connections? So what if the same person answered the complaints? So what if the lawyer found out about it? IMO, you're building a house out of straw.

2. The preference to "J" states the following:

"Sec. 18.4. Powers and duties of board of managers. The board of managers shall exercise for the association all powers, duties and authority vested in the association by law or the condominium instruments except for such powers, duties and authority reserved by law to the members of the association. The powers and duties of the board of managers shall include, but shall not be limited to, the following:"

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2200&ChapterID=62

Or, "The board of managers SHALL exercise for the association ALL powers, duties and authority vested in the association by law," meaning there are no optional powers since the association "SHALL" exercise "ALL POWERS"

*** You have not convinced me that J creates a DUTY to make your upstairs neighbor pay you for the damage to your unit. As unfair as that may sound to you, and I don't question your distress at finding that the board wasn't going to do anything about it, I don't see where all of these SHALLs and ALL POWERs obligate the board to reach the conclusion that you have decided is the only right one. Things might be different in a condo, but in my townhouse community, the board often decides not to get involved in situations where there are private insurance policies to cover the damage. If the HOA was potentially liable, we would turn the matter over to our insurance company. But in all of what you have said, you haven't volunteered any information about insurance policies, coverage, or claims. I don't understand why you made no mention of insurance which in my mind is the first place to go, but instead you tell us about J being some kind of a silver bullet. I just don't get it.

3. I complained to the board. The lawyer answered the complaint and charged me for complaining the board did not do what they "shall" do.

*** If all there is to it is that you contacted the board with a complaint and you were charged for the lawyers time to respond to you, then I would say that you shouldn't have been charged for the lawyer's time without prior notice that you would be charged. But in watching your thread morph into something totally different than your original heading and questions, I have my doubts that everything is as straightforward and one-sided as you initially describe it.

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Are you still on the board?

Sikubali jukumu. Read all posts at your own risk.

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By NpS on 12/04/2014 8:58 PM

*** You have not convinced me that J creates a DUTY to make your upstairs neighbor pay you for the damage to your unit.

*** If all there is to it is that you contacted the board with a complaint and you were charged for the lawyers time to respond to you, then I would say that you shouldn't have been charged for the lawyer's time without prior notice that you would be charged. But in watching your thread morph into something totally different than your original heading and questions, I have my doubts that everything is as straightforward and one-sided as you initially describe it.

1. My original contact with the board was asking them to make the owner stop the leak, not pay for repairs as that is all a private matter. The board chose to NOT force the owner to stop a leak that was ongoing for months, or chose not to make "emergency repairs necessary to prevent damage... to other units" (omitting "common elements with the ellipse since "other units" is different from "common elements")required by Illinois law. Yes, when property is being damaged that qualifies as an "emergency" under Illinois law.

The board refused my request and I quoted the law and said they were wrong, then I got the reply from the lawyer.

2. I did not intend for this thread to "duck-tail" I simply answered questions when asked.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimJ8 on 12/04/2014 9:54 PM

Posted By NpS on 12/04/2014 8:58 PM

*** You have not convinced me that J creates a DUTY to make your upstairs neighbor pay you for the damage to your unit.

*** If all there is to it is that you contacted the board with a complaint and you were charged for the lawyers time to respond to you, then I would say that you shouldn't have been charged for the lawyer's time without prior notice that you would be charged. But in watching your thread morph into something totally different than your original heading and questions, I have my doubts that everything is as straightforward and one-sided as you initially describe it.

1. My original contact with the board was asking them to make the owner stop the leak, not pay for repairs as that is all a private matter. The board chose to NOT force the owner to stop a leak that was ongoing for months, or chose not to make "emergency repairs necessary to prevent damage... to other units" (omitting "common elements with the ellipse since "other units" is different from "common elements")required by Illinois law. Yes, when property is being damaged that qualifies as an "emergency" under Illinois law.

The board refused my request and I quoted the law and said they were wrong, then I got the reply from the lawyer.

2. I did not intend for this thread to "duck-tail" I simply answered questions when asked.

Got it. Your predicament is clearer. And as stated previously, I have limited familiarity with condo living.

The question is - What do you want to do about it now?

IMO, chasing this separation of powers argument isn't going to get you anywhere. In fact, I think it dilutes what you have to say. And going after the HOA lawyer isn't going to get you anywhere either. Nor is anything that smells of conspiracy theory. You may get a few people to agree with you, but you will probably alienate more.

On the other hand, rallying your neighbors on the issue that the current board refuses to do emergency repairs has significant appeal. That's your issue. It has universal appeal. I think that you can change your board by bringing in new blood on that one single issue if that is what you want to accomplish.

Sikubali jukumu. Read all posts at your own risk.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By TimJ8 on 12/04/2014 7:46 PM
Agreed. I just wanted to know the legality of one officer doing duties of 2nd officer. Before this all started there were 3 people on a 7 person board. The board last year met 3 times when law requires 4 meetings a year. The president did whatever they wanted and claimed their word was that of the BOD, or Board of Directors. I think, but can't prove few people were somehow making money, and the residents weren't paying attention. They messed with the wrong person when they messed with me. I am trying to turn resident attention toward the board, but tough...

Time for some tough love, instead of trying to play Ralph Nader or ace investigative reporter or worrying about who writes out the minutes, you've got bigger fish to fry. To start with if it were me, I would take the HOA to small claims court for return of the fine. Let them prove in court that they either have the authority to pass the fee on or that they don't.

Next, do you now have a Board of seven or is it just you and the place holders? If it's a four member Board, find some homeowners willing to give up some TV time and serve. Suddenly you aren't in the minority, however if it is now six against one, step back and reassess your situation. You may be the one in the wrong, I'm not saying you are, I don't have enough info and I don't live there. But from here in the cheap seats, it looks like you joined the Board just to get back at them for how they treated you, not for the noble cause of "saving" your fellow homeowners, who seem indifferent at best.

Studies show that 5 out of 4 people have problems with fractions

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By GlenL on 12/05/2014 12:44 AM

Posted By TimJ8 on 12/04/2014 7:46 PM
Agreed. I just wanted to know the legality of one officer doing duties of 2nd officer. Before this all started there were 3 people on a 7 person board. The board last year met 3 times when law requires 4 meetings a year. The president did whatever they wanted and claimed their word was that of the BOD, or Board of Directors. I think, but can't prove few people were somehow making money, and the residents weren't paying attention. They messed with the wrong person when they messed with me. I am trying to turn resident attention toward the board, but tough...

Time for some tough love, instead of trying to play Ralph Nader or ace investigative reporter or worrying about who writes out the minutes, you've got bigger fish to fry. To start with if it were me, I would take the HOA to small claims court for return of the fine. Let them prove in court that they either have the authority to pass the fee on or that they don't.

Next, do you now have a Board of seven or is it just you and the place holders? If it's a four member Board, find some homeowners willing to give up some TV time and serve. Suddenly you aren't in the minority, however if it is now six against one, step back and reassess your situation. You may be the one in the wrong, I'm not saying you are, I don't have enough info and I don't live there. But from here in the cheap seats, it looks like you joined the Board just to get back at them for how they treated you, not for the noble cause of "saving" your fellow homeowners, who seem indifferent at best.

Encore, Encore!

BobD4 (up north)
Posts: 1,002

Posted:

Before any small claims activity - a widely recommended response everywhere - take a close look at adverse costs and toxic retaliation.

Our small claims jurisdiction, for example, was raised to $25,000 five years ago, and a 15 % guideline introduced not on the final award but on the amount of the initial CLAIM itself. Some condominium corporations here now retain topflight litigation specialists to punish condo gadflies and deter both dissent & non compliance. Do your homework.

EllieD (Vermont)
Posts: 446

Posted:

TimJ8,

What was the cause of the leak? When you first discovered the leak, was the upstairs Unit Owner home? Who did what, when, re stopping and/or repairing the cause of the leak?

You wrote the leak continued for months? Why?

And, if you are willing to answer: How many Condo Units in your Association? How many buildings, brief description of the buildings, Units per building, etc.?

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By EllieD on 12/05/2014 7:53 AM
TimJ8,

What was the cause of the leak? When you first discovered the leak, was the upstairs Unit Owner home? Who did what, when, re stopping and/or repairing the cause of the leak?

You wrote the leak continued for months? Why?

And, if you are willing to answer: How many Condo Units in your Association? How many buildings, brief description of the buildings, Units per building, etc.?

Well let’s see. 120 units in 10 buildings. Each building has two entrances so it is like 20 buildings. There are 6 units per "door way."
I heard water dripping above my celling. I told the unit owner's tenants, and the unit owner. The dripping sound continued day after day. I kept telling the owner. Eventually a water stain occurred on my celling. Then shortly thereafter water started dripping from a newly created hole. I kept updating the owner. The owner kept giving me the run-around, on how they called a plumber but can't find the leak, or someone will come by soon. Water was leaking from somewhere and settled above my celling after traveling for some distance. It was not a large leak, but it was constant and eventually it dissolved a hole in my celling. Every time I heard the unit above me turn on the water for like a shower I could expect to hear the dripping about twenty minutes later, and probably expect water to drip through the hole. I worked with the owner for over a month then contacted the HOA. The then management company ordered the owner to stop the leak. Then out-of-the-blue I get an email from the property manager stating the association said that they were no longer to pressure the owner to stop the leak, and the owner and I were on our own to resolve the issue.

I then wrote the association stating they were violating their bylaws, and I later found out actual Illinois law cited earlier in this thread. The lawyer responded and I was charged.

JonD1
Posts: 2,350

Posted:

In the debate over the "legality" of who takes the minutes my opinion who cares.

Separation of powers sounds fancy and official but I doubt there is any such language in your documents requiring such.

Leaks between units here in our condos are as in the OP's case left to the owners.

We too have in our documents the power to in an emergency enter units. We have never chosen to do so. A water drip would not constitute an emergency.

Sounds like the owner upstairs is an ass. The problem lies with them. FIX THAT.

As to the OP contacting the HOA lawyer to demand the BOARD comply with their interpretation of the documents a costly waste of time.
As stated any owner has no right to directly contact the attorney representing the HOA. Just who then should pay for their time and HOW many times were they called?

Sounds like the OP has brought about some bad blood with the Board. They investigated for wrong doing but what was found.
ANYTHING? They THINK someone was making money which proves nothing other than suspicion which is not a crime.

Sounds like a time consuming pissing contest with at least the OP trying to dig up something to score some points.

Who takes minutes, who and how many meetings are held who gets action from an irresponsible unit owner not all that big of a deal.

My opinion a few minor issues mishandled.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JonD1 on 12/05/2014 2:48 PM
We too have in our documents the power to in an emergency enter units. We have never chosen to do so.

Jon
In your condo, what kind of an emergency would have to happen for your board to exercise this right of entry?

Sikubali jukumu. Read all posts at your own risk.

JonD1
Posts: 2,350

Posted:

Well in my 27 years we have come across none.

Anything such as a natural gas leak would be addressed by the utility company and fire services which has happened on occasion.

But they entered the unit not anyone authorized by the Board.

You start entering people's property for a water drip you are opening a serious can of worms. You put yourself,
The Board, and any contractor involved in jeopardy.

I would be careful utilizing any power to enter private property.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You would be charged for contacting the HOA lawyer. He is NOT your lawyer. He is the WHOLE of the HOA lawyer. Only the board should have contacted the lawyer. You contact the board and then they consult attorney. The lawyer fee was created by you and thus to be paid by you.

Former HOA President

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By TimJ8 on 12/04/2014 6:28 PM

The owner finally fixed the leak. I was never sent a letter explaining the charge. The charge simply appeared on my statement which is paid automatically through auto draft. So..., I don't look at the statement much since it never changes. About a year later I received a collection letter stating I owed $588 for not paying the legal fees (paying for the lawyer to respond to my complaint), and $75 for the collection letter. I was told I had to pay by a deadline, or I could loose the right to occupy my condo. I was to be out-of-town on the deadline so I paid...

Melissa:

Everyone keeps missing the fact the OP did not contact the attorney ... The attorney contacted the homeowner at request of the BOD.

TimJ8 (Illinois)
Posts: 56

Posted:

Quote:

Posted By MelissaP1 on 12/05/2014 9:31 PM
You would be charged for contacting the HOA lawyer. He is NOT your lawyer. He is the WHOLE of the HOA lawyer. Only the board should have contacted the lawyer. You contact the board and then they consult attorney. The lawyer fee was created by you and thus to be paid by you.

Sorry but your post simply does not reflect reality. I complained to the board. THEY contacted the lawyer who contacted me. Under the Illinois law "reasonable attorney fees incurred enforcing the covenants of the condominium instruments, rules and regulations of the board of managers" may be charged back to residents. Also legally to be qualified to sit on the board all members must have a "working knowledge" of all laws. Either the board sought to "stick it to me" with the legal expenses, or were absolutely incompetent as they did not know of their responsibilities to stop the leak, or BOTH. Either way the lawyer fees were not created "enforcing" any law or rule, and as such were illegal.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JonD1 on 12/05/2014 9:22 PM
Well in my 27 years we have come across none.

Anything such as a natural gas leak would be addressed by the utility company and fire services which has happened on occasion.

But they entered the unit not anyone authorized by the Board.

You start entering people's property for a water drip you are opening a serious can of worms. You put yourself,
The Board, and any contractor involved in jeopardy.

I would be careful utilizing any power to enter private property.

I would have similar concerns.

I suppose the cut-off point might be for an issue that affects the structural integrity of the building. But I can't see where a water leak like the one the OP described would have such an effect over a couple of months.

Have no real experiences with condos. Just trying to get a better understanding.

I do have a friend whose condo had asbestos. The battle over responsibility went on for years and she finally sold out at a loss because it was consuming her life.

Sikubali jukumu. Read all posts at your own risk.

JonD1
Posts: 2,350

Posted:

Quote:

Posted By TimJ8 on 12/06/2014 5:38 AM

Posted By MelissaP1 on 12/05/2014 9:31 PM
You would be charged for contacting the HOA lawyer. He is NOT your lawyer. He is the WHOLE of the HOA lawyer. Only the board should have contacted the lawyer. You contact the board and then they consult attorney. The lawyer fee was created by you and thus to be paid by you.

Sorry but your post simply does not reflect reality. I complained to the board. THEY contacted the lawyer who contacted me. Under the Illinois law "reasonable attorney fees incurred enforcing the covenants of the condominium instruments, rules and regulations of the board of managers" may be charged back to residents. Also legally to be qualified to sit on the board all members must have a "working knowledge" of all laws. Either the board sought to "stick it to me" with the legal expenses, or were absolutely incompetent as they did not know of their responsibilities to stop the leak, or BOTH. Either way the lawyer fees were not created "enforcing" any law or rule, and as such were illegal.

As I have said sounds like the OP is hell bent on engaging in a pissing contest with the Board and the HOA attorney. And has decided they determine what the Board's responsibilities are rather than addressing this with the unit owner who in fact caused the leak.

My guess the OP has left a lot of this story out choosing to now play the victim in all of this. And sometimes that behavior will result in pushback from a Board.

If the OP is certain of illegal behavior such as who took the minutes, who is responsible to address a water leak between units, and questionable legal charges then hire a lawyer and sue. Should be a slam dunk win.

My guess that won't be happening.

JonD1
Posts: 2,350

Posted:

Thank you for the reply. Real quick history. I WAS elected to the board and elected Secretary. I tried to use my position to investigate past/present board members for abuses of power and using HOA money for personal expenses. I was removed from as Secretary, and replaced by a "place holder" who does not do anything. My former duties are mostly if not entirely done by the current Treasurer I believe against Illinois law and our bylaws. The lawyer say anything the board does is OK including saying the board can charge people legal fees for complaints while the lawyer responds to the resident.

Can anyone see a problem here. Why would a Board remove the OP as Secretary? Can we understand where the friction may have begun.
Is the Board Secretary's role to investigate past/present Board members. I doubt that duty is assigned in any documents.

And the OP wonders about how or why this Board responds to him as they do. Not hard for me to figure out.

EmmaH1
Posts: 674

Posted:

I think maybe the OP was trying to use his position as secretary to change things from within. This is recommended by many people that post here as a way to make things right in when their is a bad BOD in charge.

While that may not be his "official role" as secretary I am not sure it violates any laws. I do see how as a homeowner not holding a position would have difficulties gaining access to and and uncover injustices, especially if he is dealing with a secretive bad BOD.

I do see your point about a obvious problem being there and the existing friction.

However, even if he has come here to this forum and not explained himself perfectly, I admire him for trying to participate and change things if necessary within his HOA, rather than not being involved. (It does appear that there are some problems occurring within his HOA that need to be addressed IMO)

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I am on the fence on this one a bit. Can see a bit of BOTH sides. However, it seems a combination of poor communications of all parties involved. The leak sounds like one of those from the shower drain of the upstairs neighbor. The water can collect and run down the pipe. It can also condensate in an area causing a leak. I've got a leak in an upstairs bathroom in my house and seen this situation first hand.

This would seem to be a route for the insurance company. You have a claim for the water damage. You may need to contact your insurance company and then have them contact your upstairs neighbor's insurance company. I would also find out the HOA's insurance coverages as well. They may or may not play a role in these type of repairs. I can't tell because I do not have a copy of the rules or insurance policy. I would have started talking to my insurance agent to decide who pays what damages.

No you can NOT enter the property above without the owner's permission or knowledge. The HOA also can NOT enter without contacting you and the other owner. If the roof caves in, call your insurance and the fire department. NOT the HOA. Let the insurance provider decide how to handle.

In our HOA, the duties of the Secretary was to take notes. The President was NOT to act as the Secretary. So the President was not able to take "official notes" but could approve them. If you do not have a secretary, then someone else can be designated to do it as long as it's not an exception rules.

Trying to find "dirt" on you fellow board members don't endear you to anybody. The best approach is for YOU NOT to engage in questionable or selfish behavior. No one likes a bad mouther even if you speak the "truth". It makes you look bad as well. So take the approach of YOU doing good and let everything else fall off.

Former HOA President

JonD1
Posts: 2,350

Posted:

Just amazes me when people join a Board set out on a mission to find evidence against their fellow Board members, file two complaints against the HOA attorney and then play the victim when removed as Secretary.

There was a reason they voted you in as Secretary and there was a reason they voted you out.

And then you demand these same people respond as you see fit when you have a minor leak rather than addressing it with the party responsible.

This does not pass for involvement this is more of a crusade. And what you "think" "suspect" or "imagine" is not grounds for suggesting illegal behavior
such as someone else taking Board minutes. Surely the Board has more pressing issues to address.

EmmaH1
Posts: 674

Posted:

Quote:

Posted By MelissaP1 on 12/06/2014 8:00 AM
I am on the fence on this one a bit. Can see a bit of BOTH sides. However, it seems a combination of poor communications of all parties involved. The leak sounds like one of those from the shower drain of the upstairs neighbor. The water can collect and run down the pipe. It can also condensate in an area causing a leak. I've got a leak in an upstairs bathroom in my house and seen this situation first hand.

This would seem to be a route for the insurance company. You have a claim for the water damage. You may need to contact your insurance company and then have them contact your upstairs neighbor's insurance company. I would also find out the HOA's insurance coverages as well. They may or may not play a role in these type of repairs. I can't tell because I do not have a copy of the rules or insurance policy. I would have started talking to my insurance agent to decide who pays what damages.

No you can NOT enter the property above without the owner's permission or knowledge. The HOA also can NOT enter without contacting you and the other owner. If the roof caves in, call your insurance and the fire department. NOT the HOA. Let the insurance provider decide how to handle.

In our HOA, the duties of the Secretary was to take notes. The President was NOT to act as the Secretary. So the President was not able to take "official notes" but could approve them. If you do not have a secretary, then someone else can be designated to do it as long as it's not an exception rules.

Trying to find "dirt" on you fellow board members don't endear you to anybody. The best approach is for YOU NOT to engage in questionable or selfish behavior. No one likes a bad mouther even if you speak the "truth". It makes you look bad as well. So take the approach of YOU doing good and let everything else fall off.

I agree with all of the points Melissa made in her post. IMO she made a very well balanced evaluation of the situation from the information provided by the OP.

Emma