As an association attorney for more than 23 years, I am often called upon to locate, track down, extract documents for an association. In order to be successful I have had to cajole, threaten, plead and beg for these documents.
In most instances the attempts to secure these documents occur when a developer turns over control of the board of directors to the owners and when one management company gets fired and a new one takes over. More man hours and dollars are wasted in these pursuits than almost any other problem area.
Frequently, developers are uncooperative because they are embarrassed that the association records are in a shambles or don't exist at all.
Sometimes the developer is trying to hide something or is angry because of the way he or she was treated by the homeowners. There are times when the records are turned ove, essential components are either missing or incomplete.
Management companies are paid to maintain the records but sometimes are either angry over being fired or have a vendetta against the replacement manager. The end result may mean that no records are turned over or the turnover is slow. There even may be subtle attempts at sabotage - files are packed upside down, file jackets have been removed and loose papers are thrown randomly into a box.
Sometimes a disgruntled former board member will keep records that are in their possession and refuse to turn them over.
Needless to say, all of the above-mentioned situations are unprofessional and just plain immature. The problem is that they do happen.
Section 18.2 of the Illinois Condominium Property Act recites the documents that are required to be turned over to the association by a developer at the time of turnover. A recent amendment to the Act [paragraph (g)] holds the developer liable for the association's attorney fees and costs incurred if a suit is filed against an uncooperative developer. This new legislation should force the hand of the reluctant few. (Section 18.5(f)(4) of the Illinois Condominium Property Act also applies this standard to master associations and homeowners associations as well.)
Management companies and board members (present and former), however, are not subject to theses laws. If a board is required to file suit, they are at risk for their own fees, which could be substantial. To add insult to injury, Section 19 of the Illinois Condominium Property Act sets for the documents a board must maintain and produce within 30 days of an owner's request. The owner can recover attorneys fees and costs from an uncooperative board. What if a board receives a request but did not obtain the records from the uncooperative manager or former director? This would certainly raise a defense, but is also calls into question an association's record-keeping procedures.
Following is a list of documents an association absolutely needs in order to operate.
- Articles of incorporation.
- Recorded copies of Declaration and …