Associations Must Establish Written Policy for Resolving Unit Owner Complaints

Policy for Resolving Unit Owner Complaints

No later than January 1, 2019, associations must establish and adopt a written policy for resolving unit owner’s complaints. This requirement is under Section 35 of the Condominium and Common Interest Community Ombudsperson Act (the “Ombudsperson Act”) and applies to all condominium associations as well as all common interest community association not exempt from the Common Interest Community Association Act (“CICAA”).

In regards to the policy, a unit owner complaint is a dispute between a unit owner and the association that concerns a matter which is not pending in a court of law and is related to the alleged or perceived action, inaction, or decision by the board, property manager, or association that the owner believes is inconsistent with applicable laws and/or the association’s governing documents.

At a minimum, the policy must include:

1. a sample owner complaint form for the owner to complete that identifies which law, declaration provision, or association rule that the owner believes was violated, a description of the complaint, the requested resolution, and a description of any supporting documentation that is attached to the complaint;
2. a description of the process for an owner to deliver the complaint to the association (how it should be delivered to the association, i.e. by certified mail, hand-delivery, or email; and to whom, i.e. the property manager or the board president);
3. the timeline and manner for the association to make a final determination in response to the complaint (i.e., that the board will acknowledge receipt of the complaint in writing; that the association will review it and, if necessary, request any additional relevant information or documentation from the owner no later than 30 days after receipt of the complaint; the timeframe in which the owner must submit the additional information or documentation and that the owner’s failure to comply will result in the complaint being deemed withdrawn; that the association will hold a hearing, at which the owner can present witnesses or documents; that the board will make a final determination within a set of time after the hearing in a resolution adopted by the board at an opening meeting; and that the association will maintain a record of the complaint for at least 7 years after the resolution is adopted); and
4. a requirement that the final determination on the complaint be made in writing within 180 days after the association received the complaint and clearly marked as “final.”

The board also should make sure that the policy does not conflict with the Association’s existing rule enforcement policies. If it does, the rules will need to be amended to comply with the above.

The policy must then be adopted in the same manners as rules and regulations. After it has been drafted, a copy of the policy must be sent to all owners of record for review. Thereafter, at properly noticed owners’ meeting called for the specific purpose of discussing the policy, the board can vote to approve the policy after allowing the owners to comment on it. After it has been adopted, a copy of the policy must be made available to all unit owners upon request.

No one will investigate to make sure that the association has a policy in place, but owners may report the lack of such a policy to the Illinois Department of Financial and Professional Regulation (“IDFPR”). The law does not provide specific penalties for an association failing to adopt the required policy. However, an association that fails to comply with this law may have difficulty in court if a lawsuit is necessary to address the issues underlying the owner’s complaint. Further, if an owner takes the association to court, the association will have difficulty defending its actions if there is not a written policy in place with which it can show that court that it has fully and diligently complied.

What does this mean for your association? It means that if your association does not currently have a policy in place to resolve complaints received from unit owners, it should immediately start drafting one with the assistance of your property manager and attorney. The policy must be in place by January 1, 2019 and the Association must draft, send notice, and have a meeting of the owners before it can adopt the requisite policy so time is short.

Robyn Kish

Robyn K. Kish is an associate attorney at Klein, Daday, Aretos & O’Donoghue, LLC. Robyn earned her Juris Doctor from Chicago-Kent College of Law in 200 and...

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