By: Kristofer Kasten
MICHAEL C. KIM & ASSOCIATES
ATTORNEYS AT LAW
19 South LaSalle Street, Suite 303, Chicago, IL 60603
T: 312.419.4000 - F: 312.419.4008 - www.mkimlaw.com
By now, most, if not all, community association managers and board members, as well as attentive owners, of condominium and common interest community associations are aware that there is a January 1, 2019 deadline to adopt a complaint resolution policy under the Illinois Condominium and Common Interest Community Ombudsperson Act (the “Ombudsperson Act”). Although that deadline is quickly approaching, it does not mean that “the sky is falling” or that associations must hastily adopt a one-size-fits all form policy. Let’s all just take a deep breath and give some thought to the matter to understand what is required and what best suits each individual association.
Many associations may already have procedures under their declaration, bylaws, or rules and regulations pursuant to which owners may file complaints about other owners. Those procedures are typically part of the association’s enforcement policy because they relate to the association addressing an owner’s alleged violation of the declaration, bylaws, or rules and regulations. The complaint resolution policy under the Ombudsperson Act is different than those procedures because it deals with an owner’s complaint about the association, not other owners.
To assist associations in understanding what is required of them, we provide the following questions and answers:
Q: Is my association required to comply?
A: If your association is a condominium or a non-exempt common interest community, then your association must adopt a complaint resolution policy.
An exempt common interest community association is one that is exempt from the provisions of the Illinois Common Interest Community Association Act (the “CICAA”); specifically, such association has either (a) 10 units or less or (b) annual budgeted assessments of $100,000 or less, unless that association voluntarily elects to be covered by the CICAA.
Q: What must the policy include?
A: Section 35 of the Ombudsperson Act provides that the “policy must include: (1) a sample form on which a unit owner may make a complaint to the association; (2) a description ofthe process by which complaints shall be delivered to the association; (3) the association’s timeline and manner of making final determinations in response to a unit owner’s complaint; and (4) a requirement that the final determination made by the association in response to a unit owner’s complaint be: (i) made in writing; (ii) made within 180 days after the association received the unit owner’s original complaint; and(iii) marked clearly and conspicuously as “final”.”
Note that the Ombudsperson has published a sample policy and complaint form on itswebsite, which can be found under the “Publications” tab. The website URL is: https://www.idfpr.com/ccico/.
Q: Is the policy published on the Ombudsperson’s website mandatory?
A: No. The Ombudsperson has published a sample policy that includes the basic requirements under the Ombudsperson Act, as well as additional provisions for consideration. An association may (1) use the sample policy as published or (2) may modify it for their particular association or (3) use their own existing policy (typically a rules enforcement policy) as long as it generally complies with the Ombudsperson Act and provides for a final determination within 180 days that is marked “final”.
Q: Is the complaint form published on the Ombudsperson’s website mandatory?
A: No. Similar to the policy, the complaint form is a sample that the association may use, (either as published or modified for their particular association) or the association can modify/adapt its existing enforcement policy to include the required elements.
Q: Can the board adopt the policy without a unit owner vote?
A: If the policy only establishes a procedure pursuant to which owners can submit complaints about the association to the association, without the imposition of any type of sanction or adverse consequence (such as monetary fines or denial of privileges) to any party, then the board can adopt the policy via a board resolution. In such a situation, no meeting of the unit owners would be required to discuss the policy before the board can adopt it by resolution. However, the board must still adopt the resolution at a duly noticed open board meeting at which a quorum is present. Also, the board must still provide notice of the policy to all owners.
If the policy goes further than simply establishing a procedure for making complaints to the association and also provides for the imposition of some type of sanction or adverse consequence against any party, then the policy is more akin to a rule and the procedure for adopting rules should be followed. In either case, the board can adopt the policy without a unit owner vote.
Q: What happens if the association does not adopt the policy by January 1, 2019?
A: The Ombudsperson Act does not provide for any specific consequence or penalty if the policy is not adopted by the prescribed deadline.
That said, boards should be mindful that they are required under Illinois law to strictly comply with their respective governing statutes. Section 35 of the Illinois Condominium Property Act incorporates the Ombudsperson Act by reference. Section 1-90 of CICAA does the same. Accordingly, the association should adopt the policy regardless of whether or not there are consequences for not doing so.
If your association has not already done so, it must adopt a complaint resolution policy by January 1, 2019 because that what the law requires. However, there is no need to freak out about it. Should you have any questions about what your association should do to comply, please contact us and we will assist you in meeting the January 1, 2019 deadline.
This document has been prepared by Michael C. Kim & Associates for informational purposes only. Michael C. Kim & Associates is a law firm representing community associations. Download a PDF of the article here. Visit us at www.mkimlaw.com.