Q&A: Pony Express

Q In this day and age, must notices of rule violations be sent by certified mail, or can they be sent via priority/tracking mail, or even email? Must resident complaints to a rules committee always be submitted via a standardized form, or can they be emails, texts or even phone calls? Also, can certain violations - such as parking without permission, or making loud noise—be fined automatically, with the resident retaining the right to appeal to the board? A According to Gabriella Comstock, Keough & Moody, PC in Naperville, “When determining how notice of a violation must be sent to an owner, the association's governing documents should be reviewed to determine the method by which is must be sent. Even if the governing documents do not require it, or if they are silent on the matter, it's a good idea to send notices of violation via both certified and regular mail. Certified mail ensures that there is a paper trail verifying that the notice was sent. Even if the owner does not claim the certified letter, if the notice sent by regular mail is not returned to the association, the presumption is that the notice sent by regular mail was delivered. I do not recommend that notices be sent only by e-mail. If it is sent by e-mail, this should only be done when the governing documents so provide, and the owner has consented to receiving notice in this manner.

Regarding resident complaints, it's a good idea for an association to have a standard form for complaining witnesses to complete. However, this should not be the only way for an owner to submit a complaint. A complaint submitted by an owner via email or other written means that contains substantially the same information as in the form should be still considered by the board. All complaints should be in writing; if an owner submits a complaint by phone call, they should be asked to submit a written complaint. This ensures that the board understands the complaint and can properly investigate the matter.

When it comes to fines, the board of an association bound by the Illinois Condominium Property Act or the Common Interest Community Association Act only has the power to impose a reasonable fine after the violating owner has been given notice and the opportunity to be heard. If the owner elects not to appear before or to be heard by the board, the fine can imposed—but again, only if the owner was given notice of the violation and the opportunity to be heard. If a board finds an owner to be in violation of the governing documents, it's good practice for them to advise the owner that continued or subsequent violations for the same conduct will result in a monetary fine. This is acceptable, since after the first time the owner committed the violation they were given the opportunity to be heard by the board.

It is important that boards always err on the side of giving owners the opportunity to be heard. This is especially important when the association has to take legal action as a result of rule violations. The last thing a judge wants to hear is that an owner tried to talk to the board, but the board would not meet with him or her.”

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