Should smokers be grandfathered if smoking rule changes?
Q. Smoking complaints have increased dramatically in our association. This is attributed to more people working from home these days. As a result, we are considering amending the declaration to prohibit smoking anywhere on the property, including in the units. Do current “smokers” need to be grandfathered in the amendment?
A. It is my contention that an amendment that prohibits smoking in units does not have to grandfather current smokers, and should not grandfather existing smokers. The rationale is that secondhand smoke that migrates from a unit into the common elements and/or another unit exposes others to the health consequences of such secondhand smoke. Such conduct would violate common covenants that prohibit nuisance and noxious conduct.
It would seem completely arbitrary to have a neighbor continue to be exposed to secondhand smoke from a grandfathered owner simply because they happen to live next to a person who smoked at the time the amendment was recorded.
Q. The board of directors of our condominium association now holds its meeting via video conference. Does this change how notice of board meetings is to be given?
A. The board can conduct board meetings via video conference. The notice of the board meeting would be the same as for an in-person board meeting, with one exception. Rather than identifying a physical location for the board meeting, the notice would include information as to how to access the video board meeting. That is, it would include a link to the video meeting, and any necessary meeting id/password.
As a housekeeping matter, everyone joining the video meeting, except board members/management, should be “muted.” They could be unmuted if and when the chair of the meeting recognizes an owner to address the board. Otherwise, particularly in a well-attended video board meeting, it can be difficult to maintain order if everyone can speak at any time.
Q. Our condominium association is composed of about 90 residential units and four commercial units. Assessments paid by all owners include each unit’s share of the waste hauler contract. The commercial units have nonetheless secured their own waste hauler, even though the association’s waste hauler contract includes the commercial units and the same service the commercial units would receive under the association’s contact. The commercial unit owners want a refund or reduction of assessments to reflect their nonuse of the association’s waste hauler. Is this appropriate?
A. Providing the commercial unit owners a refund or reduction of assessments to reflect their nonuse of the association’s waste hauler is not required. Such is the condominium regime. How expenses are spread among all the unit owners does not necessarily reflect any particular unit owner’s actual use of services provided by the association.
Q. I am the president of a condominium association. The board wants to hold a board meeting to remove me as president. The declaration for the association states that any board member may be removed from office by the affirmative vote of the owners having at least two-thirds of the total votes. Isn’t an owner vote required to remove me as president?
A. The board elects the officers (president, secretary, treasurer). The board may remove a board member from an officer position by majority vote of the board at a board meeting when a quorum is present. However, that board member remains on the board.
The language from the declaration that you quote addresses removal of a board member from the board entirely. That is, an owner vote is required to remove a board member from the board, not from an officer position.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.