Q. I live in a condominium association and recently, four out of our five board directors were removed from the board by a vote of the unit owners. One of the ousted board members was the secretary, who
kept files on infractions and correspondences/documents relating to every unit. However, when those records were turned over to the replacement board, the file on each of the units relating to removed directors was mysteriously empty compared to every other unit having some correspondences. What legal options does the new board have to recover the missing records?
A. If the management company cannot recover the unit file records, the association's legal counsel should issue a demand to the former secretary to turn over all association records in his or her possession. All association records in possession of a former board member must be turned over to the board.
While the association could file a declaratory lawsuit to force the return of association records that were not turned over, such litigation would be costly and questionable if the only records ultimately recovered are old correspondences and abated infractions. Practically speaking, the board may be best served to look forward, instead of backward, and shift the record-keeping responsibility to the management company instead of individual board members to avoid this scenario from occurring in the future.
Q. After some 20-plus years, our condominium board has chosen to change the association's cable service provider. The new provider is requiring the installation of its wiring system because the existing wiring for the previous cable service provider cannot be used. Can we be forced to have our cable wiring swapped and, if so, can the association still charge us for cable service that we would not be receiving?
A. It is within the authority of the board to execute a contract for a change in the cable service provider. As such, it is common for a new service provider to have to rewire a building, especially if the wiring is outdated and does not meet with contemporary technological standards.
The board can have the building rewired throughout the common elements and limited common elements. If unit owners were to refuse to allow such wiring to be connected to their unit televisions, they should be aware that under Section 18.4(o) of the Condominium Act, the association can still allocate bulk cable service fees on a per-unit basis. Unit owners are responsible for cable charges whether or not they accept the new service.
Q. Many years ago, our condominium association amended our declaration to prohibit the leasing of units except to direct relatives of a unit owner. We have recently become aware that our leasing amendment does not comply with Federal Housing Authority regulations to allow our building to be FHA approved because of our leasing restrictions. How can we get this corrected?
A. Occasionally, original condominium declaration provisions relating to the sale or leasing of units, or amendments to such provisions, do not comply with current FHA guidelines to allow a building to be FHA approved. In the event that association does want to procure FHA approval for its building to allow borrowers to obtain favorable FHA financing terms, the condominium declaration must be amended to meet FHA guidelines. Unit owners must approve any amendment to the declaration consistent with their declaration provisions, which pursuant to Section 27 of the Condominium Act, must be no less than two-thirds unit owner approval and no more than 75 percent unit owner approval. Commonly, declarations require mortgagee approval to amend leasing provisions. Examples of provisions that do not meet FHA guidelines are outright prohibitions on leasing, leasing restrictions that require character or financial references of prospective lessees or buyers be delivered to the board, and restrictions that would prohibit a foreclosing lender from leasing a unit.