Condo Adviser: Community association’s unshoveled sidewalks not necessarily a liability

Q: I live in a small suburban community association and with winter snowstorms upon us, we are at the mercy of the snow removal company’s schedule for snow removal. What is the liability for the association if there is a car accident on our private road or a person slips on a sidewalk not shoveled after a snowfall, prior to the snow being removed by our snow removal contractor? 

A: As a general rule of law, when snow naturally falls, a property owner will not be liable when injury occurs; however, by contrast, when snow is disturbed by the conduct of someone such as snow shoveling or plowing, potential liability does exist if the conduct was the proximate cause of an injury and there was a breach of a duty by the individual disturbing the snow.

Premises liability is very fact specific. Generally, if there is a delay in snow shoveling or plowing and an individual slips on freshly fallen, undisturbed snow, it does not automatically create premises liability.

Q: I am an owner in a small condominium association with three board members. We recently had an election and the new board member elected was so abusive, the other two board members resigned shortly after the election. At the next board meeting, the remaining board member appointed two individuals to fill the vacancies of the resigned board members without advance notice to the unit owners or an election. Is this proper?

A: Section 18(a)(13) of the Condominium Act sets forth the process in which a condominium board may fill vacancies on the board. The section states that a board vacancy may be filled by the 2/3 vote of the remaining board members who may appoint unit owners to serve until the next annual election. Alternatively, if 20% of the unit owners file a petition to fill the vacancies for the remaining balance of the term, a unit owner meeting shall be held within 30 days thereafter to fill the vacancies for the unexpired portion of the resigned board members terms.

Therefore, in a three-person board where two directors resigned, the single remaining director is 100% of the remaining board members, and thus, has the authority to appoint two unit owners to fill the vacancies until the next annual meeting unless 20% of the unit owners submit a petition to fill the vacancy for the remaining balance of the term of the signed board members.

Q: I am on the board of a small, new-construction condominium association. We are currently negotiating with the developer of the project for construction defects and it is my understanding that recent Illinois case law may be advantageous to community associations that have claims against developers. Is that accurate?

A: On November 30,  2023, the Illinois Supreme Court unanimously upended decades of Illinois law regarding coverage under commercial general liability policies, which is a positive development for community associations that have claims against a developer of a community association, because such claims against the developer may now result in insurance coverage for the developer, and thus, a deep pocket to pay potential damages for construction defects.

The Illinois Supreme Court held in Acuity v. M/I Homes of Chicago, LLC that the “your work” exception under commercial general liability policies did not prevent a contractor’s coverage for unexpected and unintended property damages caused by the insured’s faulty workmanship. Previously, Illinois followed a relatively narrow interpretation that prevented such coverage.

Got a question for the Condo Adviser? Email ctc-realestate@chicagotribune.com.