General Guidelines Protocol

GENERAL GUIDELINES CONCERNING CONDOMINIUM BOARD HEARING PROTOCOL by Allan Goldberg, Arnstein & Lehr LLP Condominium board hearings can be highly volatile meetings between Associations and unit owners. Whereas the common practice is to prepare a set of tailored rules to be implemented by Boards with respect to a more detailed set of guidelines, I will address some of those issues in a general fashion in this article. To begin, the Illinois Condominium Property Act ("Act") provides, in Section 18.4(l), that a Board of Directors may, "after notice and an opportunity to be heard,…." levy reasonable fines for violations of the Declaration, Bylaws, and Rules and Regulations of the association. The key element here is that every unit owner must be afforded an opportunity for a hearing. The spirit and intent of this provision is to essentially provide due process to unit owners. Generally speaking, it is important to provide an atmosphere of fairness and neighborliness even in these somewhat tense situations. Board members must remember that unit owners called to a hearing for purposes of possibly being sanctioned, are often already intimidated. Rather than creating an atmosphere of the notorious "Spanish Inquisition", Board members should try to create a spirit of harmony even though they are considering possible harsh ramifications by way of fines and other sanctions in the proceeding. It is important that, where and to the extent practicable, the Board calls complaining witnesses to be present since in fairness to the unit owner's due process rights, they should be able to confront and cross-examine their accusers as well as to present their "side of the story." Everyone should be given a full and fair opportunity to be heard although time limits on the dialog may be established. Often, a unit owner will come to such hearing with their own legal representative; it is best, in my opinion, not to have association counsel present at every hearing, but only in unusual circumstances where it is known that the unit owner might bring their own counsel in order to establish a defense to the charge or allegation. Typically, a Board has a range of actions which it can take in an administrative, closed session, hearing with unit owners. First, it is important to remember that the hearings should be conducted in closed session to afford the unit owner his or her right of privacy. All closed sessions should, of course, be part of a general open Board meeting, so that the Board should reconvene in open session to actually vote on the matters discussed in closed session. It is critical to remember that no vote should be taken in closed session. It is also important to know that the motion and vote in open session can be couched in very ambiguous and general terms so as to respect the right of privacy of the individual. Next, it is always a good idea to notify the unit owner in writing of the Board's final determination. The range of sanctions referenced above, can be anything from an

admonishment/warning, a fine, or even the harshest of determinations, i. e., a finding that the unit owner shall permanently remove themselves or the nuisance situation from the unit1. The overall atmosphere of Board conducted hearings should be one of respect and reasoned deliberation. Phrased somewhat differently, the Board should not appear to be the accuser or the enemy. However, there are situations where a Board (i) is confronted with a known violation of a provision of the Rules or the covenants, and (ii) there are no particular witnesses yet all know that the unit owner has violated one or more provisions in these documents. The Board must take a firm hand in dealing with the unit owner in order to set a consistent and solid precedent for future actions by others.

At least one association has successfully evicted unit occupants based on a Board determination that they must permanently move from the Unit and the Building. 1