By: David C. Hartwell, Esq. Penland & Hartwell, LLC 1 N. LaSalle Street, 38 th Floor Chicago, Illinois

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1 ILLINOIS LEGISLATION AND CASE LAW UPDATE FOR COMMUNITY ASSOCIATIONS By: David C. Hartwell, Esq. Penland & Hartwell, LLC 1 N. LaSalle Street, 38 th Floor Chicago, Illinois This Presentation is copyrighted by Penland & Hartwell, LLC 2014

2 2 I. LEGISLATION SENATE BILL 2664 Would have amended Section 9(g)(5) of the ICPA by increasing the existing 6-month lien to a 9-month lien, eliminating the need to file a forcible entry and detainer lawsuit to perfect the lien rights and allowing the lien to apply to a consent foreclosure or a deed in lieu of foreclosure. However, the proposed amendment narrowed the definition to Regular Monthly Assessments to mean the amount charged by the association as provided for in the current annual budget which would have significantly reduced the amount an association could have collected by eliminating special assessments, legal fees and costs, fines, and amounts expended to rent the unit. Governor Quinn issued an amendatory veto, which maintains the requested language as it applies to third party purchasers; but now requires banks to pay all other arrearages on the unit. The amendment states: Therefore, pursuant to Article IV, Section 9(e) of the Illinois Constitution of 1970, I return Senate Bill 2664, entitled AN ACT concerning civil law. with the following specific recommendations for change: on page 10, line 20, by replacing The with Following a foreclosure sale, a consent foreclosure, common law strict foreclosure or the delivery of a deed in lieu of foreclosure, the mortgagee shall have the duty to pay to the association those amounts required by subdivision (g)(1) of Section 9 of this Act, except that, the ; and on page 12, line 9, by replacing subdivision subdivisions (g)(1) and with subdivisions (g)(1) and. Section 9(g)(5) of the ICPA remains unchanged. The future of this amendment now lies with the Bill s sponsor, Senator Michael Hasting, who can (1) move the Senate to accept the Governor s changes, (2) move the Senate to override the Governor s veto or (3) take no action which will keep the current law in place. If the Senate approves the Governor s changes, the House of Representatives will have the same options. If both Houses approve the Governor s changes, then the proposed amendment will become law. ELECTRONIC DELIVERY OF COMMUNICATIONS ALLOWED Effective January 1, 2015, Section 18.4 of the ICPA was amended to permit condominium boards of directors to adopt rules and regulations to allow for electronic delivery of notices and other communications required by the ICPA if a unit owner submits an electronic address for such notices. Section 18.4(s) of the ICPA now states: To adopt and amend rules and regulations (l) authorizing electronic delivery of notices and other communications required or contemplated by this Act to each unit owner who provides the association with written authorization for electronic delivery and an electronic address to which such communications are to be

3 3 electronically transmitted; and (2) authorizing each unit owner to designate an electronic address or a U.S. Postal Service address, or both, as the unit owner's address on any list of members or unit owners which an association is required to provide upon request pursuant to any provision of this Act or any condominium instrument. Upon the adoption of rules pursuant to this new law and collection of electronic addresses, Boards may send unit owners notices of meetings and any other information that is required under the ICPA to be distributed to unit owners. This new legislations will allow for more efficient and cost effective notification and communication to unit owners. Electronic delivery would not apply to notices of rule violations or fines, 30-day collection notices, or other similar type notices. It is recommended that Boards work with their legal counsel to draft and adopt (i) a rule allowing for electronic delivery of notices and other communications and (ii) a written authorization form for unit owners to execute designating an electronic address. HB 5322 amends CICAA to allow for electronic communication. ASSOCIATION S RIGHTS AGAINST DEVELOPER NOT LIMITED House Bill 4783, effective January 1, 2015, adds new Section 765 ILCS 605/18.8, which invalidates language in a declaration limiting the rights of the Board of Managers to bring legal action or otherwise be forced to arbitrate regarding the common elements. The new section states: Sec Common elements; rights of board. (a) Any provision in a condominium instrument is void as against public policy and ineffective if it limits or restricts the rights of the board of managers by: (1) requiring the prior consent of the unit owners in order for the board of managers to take any action, including the institution of any action in court or a demand for a trial by jury; or (2) notwithstanding Section 32 of this Act, requiring the board of managers to arbitrate or mediate a dispute with any one or more of all of the declarants under the condominium instruments or the developer or any person not then a unit owner prior to the institution of any action by the board of managers or a demand for a trial by jury. (b) A provision in a declaration which would otherwise be void and ineffective under this Section may be enforced if it is approved by a vote of not less than 75% of the unit owners at any time after the election of the first unit owner board of managers. Many developers included such language in a declaration in an effort to preclude a unit owner Board of Managers from bring suit against the developer.

4 4 ASSOCIATION'S RIGHT TO RENT A UNIT IS CLARIFIED House Bill 4782, effective January 1, 2015, amends 735 ILCS 5/ to clarify the Associations right to rent out a unit in which it has obtained possession through a forcible entry and detainer action. The amendment provides that the commencement date of the lease must be within 8 months of the date of the expiration of the stay of the order of possession. If the unit is not rented within this timeframe, the Association must obtain approval from the court. An Association is still entitled to lease the unit for 13 months. If the assessment delinquency owed by the subject unit has not reached a zero balance after 13 months and the lease needs to be extended beyond 13 months in order to pay off the assessment balance, then the association must file a motion and seek approval from the court for an extension of the lease. ICPA INSURANCE REQUIREMENTS ARE AMENDED Senate Bill 3014, effective June 1, 2015, amends Section 12 of the ICPA relating to the Association s insurance requirements for the common elements and limited common elements. First, property insurance coverage must now provide coverage at the time the insurance is purchased and at each renewal date, in a total amount of not less than the full insurable replacement costs of the insured property, less deductibles, but including coverage sufficient to rebuild the insured property in compliance with building code requirements subsequent to an insured loss, including: Coverage B, demolition costs; and Coverage C, increased costs of construction coverage. The combined total of Coverage B and Coverage C shall be no less than 10% of each insured building value, or $500,000, whichever is less. The Bill also amends Section 12(3)(D) of the ICPA to require that the fidelity bond for the directors and officers to include, but not be limited to, coverage of: defense of non-monetary actions; defense of breach of contract; and defense of decisions related to the placement of adequacy of insurance. The coverage required by this subparagraph (D) shall include as an insured, past, present, and future board members while acting in their capacity as members of the board of directors; the managing agent; and employees of the board of directors and the managing agent. The Bill further amends Section 12(h) by eliminating the Board s right to purchase insurance coverage on behalf of a unit as allowed by rules and regulation adopted by the Board regarding mandatory unit insurance in the event that a unit owner does not purchase such insurance. If your condominium association has previously adopted mandatory unit insurance rules with that remedy, such rules and regulations should be revised to eliminate that remedy due to the change in the law. These changes apply only to insurance policies issued or renewed on or after June 1, 2015.

5 5 SPECIAL PROCESS SERVERS MUST BE ALLOWED ACCESS TO GATED COMMUNITIES Effective January 1, 2015, the Section 735 ILCS 5/2-203 of Illinois Code of Civil Procedure is amended to require employees of a residential housing community, including condominium or community associations, and residential cooperatives, to grant licensed process servers entry into the community to serve process of law on a defendant or a witness who resides within the gated community or building. The new language states: An employee of a gated residential community shall grant entry into the community, including its common areas and common elements, to a process server authorized under Section of this Code who is attempting to serve process on a defendant or witness who resides within or is known to be within the community. As used in this Section, "gated residential community" includes a condominium association, housing cooperative, or private community. CICAA IS AMENDED TO INCLUDE TECHNICAL CHANGE REGARDING LEASING Senate Bill 3057, effective January 1, 2015, amends Section 765 ILCS 160/1-35 of CICAA to require an owner to provide a copy of a lease to the association unless otherwise provided in the association s governing documents.

6 6 II. NEW CASE LAW APPELLATE COURT RULES LAZY BUYER OF A FORECLOSED CONDOMINIUM UNIT MAY BE RESPONSIBLE FOR ALL UNPAID ASSESSMENTS OWED BY THE PREVIOUS OWNER On August 12, 2014, the Illinois Appellate Court affirmed the trial court s ruling in 1010 Lake Shore Association v. Deutsche Bank National Trust Company, which held that if a purchaser of a foreclosed condominium unit does not pay the assessments starting the first day of the month after the foreclosure sale, as required by Section 9(g) of the ICPA, the association s statutory lien against the unit is not extinguished and the purchaser is responsible for all assessments owed by the previous owner. The defendant in the case argued that the court s ruling contradicts well-settled law which provides that all outstanding claims on property that has been the subject of a foreclosure and sale are extinguished and that the purchaser takes the property free of any such claims. However, the Appellate Court reasoned that section 9(g)(3), which is contained in the Condominium Property Act and relates to the payment of assessments by the purchaser of a condominium unit at a judicial foreclosure sale and the effect the making of such a payment has on the status of a lien arising from a previous owner s failure to make assessment payments, is a specific statutory provision that must control over the general rule of foreclosure law cited by defendant. The court concluded that a lien created pursuant to section 9(g)(1) is not fully extinguishable by a foreclosure and sale because the purchaser must make an assessment payment under section 9(g)(3) to confirm the extinguishment of that lien. Based on the court s ruling, condominium associations may seek to collect its entire lien for unpaid assessments from a purchaser who fails to pay monthly assessments timely after a foreclosure sale. It is recommended that all foreclosures are closely monitored by legal counsel in order to maximize collection. PALM II REVIEW STILL PENDING The 2800 Lake Shore Drive Condominium Association has sought for review of the appellate court s ruling on several issues. DISCLAIMER This presentation is written to provide a general overview and guide to the Illinois Condominium Property Act and Illinois case law related to community associations. The materials and comments contained in this guide do not constitute, and should not be treated as, legal advice. Although every effort has been made to assure its accuracy, the attorneys at Penland & Hartwell, LLC do not assume responsibility for any individual's reliance on the information contained in this presentation. Each reader should independently verify all statements made in the presentation before applying them to a particular fact situation.

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