In a world left reeling from the impact of the novel coronavirus pandemic, students have finished their academic semesters, even their graduate-school educations, via video-conferencing.  Individuals suffering from chronic diseases are being treated via remote consultations with their physicians to avoid the dangers of possible coronavirus exposure at hospitals. The United States Supreme Court, for the first time in its history, heard oral arguments (and a flushing toilet) [1] by telephone for cases running the gamut from “robo calls” to the constitutionality of a portion of the Affordable Care Act. [2] On May 15, 2020, the House of Representatives voted to approve rule changes that would permit its members to vote by proxy and to hold hearings remotely, [3] while the Senate continues to debate the subject.

 

Condominium, homeowner, and townhome community associations are scarcely immune from the pandemic-imposed hurdles faced by all who seek to adhere to their respective jurisdiction’s restrictions. In Illinois, for example, Governor Pritzker has issued numerous executive orders which continue to urge social distancing even as the State enters “Phase Three” of its pandemic response.

 

As a result of the perceived challenges of conducting board or annual meetings in a statutorily compliance manner, some associations have opted simply to postpone these meetings. While good news these days is scarce, there is good news here in fact:  condominium law and the State’s executive orders can be harmonized such that both board meetings and annual meetings may proceed without putting board members or the association membership at risk.

 

As with most of the legal dilemmas faced by condominium associations, the mechanism for conducting legally compliant and productive meetings – whether regular board meetings or annual elections – is contained in or can be extrapolated from the associations’ governing documents and the Illinois Condominium Property Act (765 ILCS 605/1, et seq.)

 

Section 18.8 of the Condominium Property Act (hereafter referred to as “the Act”), for example, is addressed solely to how associations may make use of technology. Notices, votes and approval of association actions may be accomplished through “acceptable technological means”. Such “acceptable technological means” includes a wide range of electronic options, including the Internet, an intranet, email and facsimile – so long as the method provides reasonable security, reliability, identification and verifiability.

 

These technological options are available to the association, board members and unit owners, alike, as to their performance of their respective obligations. Notably, voting electronically is expressly permitted, provided that “a record” is created and maintained. Your association’s attorney can provide you with guidance on what constitutes just such a statutorily compliant record, along with suggestions for specific platforms that will accommodate the requisite technological parameters of your regular board meetings.

 

One notable prerequisite of any such platform the Board wishes to use will be the ability of each unit owner to have access to join the meeting and listen to its proceedings. Of course, notice of the meeting must be sent out in accordance with the Act, whether electronically or otherwise.

 

Electronic voting at board elections is also permitted under the Act; however, the board needs to take appropriate action well in advance of the annual meeting – at least 120 days before, to be specific. The procedure is detailed in Section 18(b)(9)(B-5) of the Act; among other things, that Section of the Act requires that the board of directors have promulgated a rule permitting such electronic voting. Such rule will eliminate certain other typical methods of voting, however, including the right to vote via proxy at board elections.

 

It bears noting, too, that owners do have the right to file a petition asking for a meeting after the board approves this particular rule regarding electronic voting.  In the event that the board receives such a petition, it must call a meeting of the unit owners to vote on the rule; unless a majority of the total votes of the unit owners are cast at the meeting to reject the rule, however, the rule is ratified. For those few unit owners who insist on voting “at” a meeting, they should have the option of dropping off a ballot on the night of the evening.

 

The challenge of staying a step ahead of the pandemic in both personal and professional capacities is daunting. Association board meetings, however, need not contribute to the stresses brought on by the coronavirus.

 

If you or your association has questions about how to handle either board or annual meetings via remote technology, do not hesitate to contact our law firm. Please call 855-537-0500 or visit www.ksnlaw.com.

 

Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. We have four office locations, serving hundreds of clients and thousands of communities throughout Illinois, Indiana, and Wisconsin. Our attorneys are also licensed in Arizona, Florida, and Missouri.

 

[1] https://www.washingtonpost.com/nation/2020/05/07/toilet-flush-supreme-court, available May 28, 2020.

[2]https://www.scotusblog.com/2020/04/court-sets-cases-for-may-telephone-arguments-will-make-live-audio-available, available May 28, 2020.

[3] https://www.npr.org/sections/coronavirus-live-updates/2020/05/15/856403393/with-historic-vote-house-will-allow-proxy-voting-remote-hearings-during-pandemic, available May 28, 2020.

 

Please note the material contained in this article is for educational and informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained in this article. You should not act on the information discussed in this article without first obtaining legal advice from an attorney duly licensed to practice law in your State. While KSN has made every effort to include up-to-date information in this article, the law can change quickly. Accordingly, please understand that information discussed in this article may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete, or up to date. KSN reserves the right to revise or update the information and statements of law discussed in the article law at any time, without notice, and disclaims any liability for your use of information or statements of law discussed on the article, or the accessibility of the article generally. This article may be considered.