Rep. Elaine Nekritz

Filed: 4/8/2014

 

 


 

 


 
09800HB4204ham001LRB098 15146 JLS 58359 a

1
AMENDMENT TO HOUSE BILL 4204

2    AMENDMENT NO. ______. Amend House Bill 4204 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. Short title. This Act may be cited as the
5Condominium and Common Interest Community Ombudsperson Act.
 
6    Section 5. Applicability. This Act applies to all
7condominium associations governed by the Condominium Property
8Act and all common interest community associations governed by
9the Common Interest Community Association Act.
 
10    Section 10. Findings. The General Assembly finds as
11follows:
12        (1) Managing condominium property or common interest
13    community property is a complex responsibility. Unit
14    owners and persons charged with managing condominium
15    property or common interest community property may have

 

 

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1    little or no prior experience in managing real property,
2    operating a not-for-profit association or corporation,
3    complying with the laws governing condominium property or
4    common interest community property, and interpreting and
5    enforcing restrictions and rules imposed by applicable
6    instruments or covenants. Unit owners may not fully
7    understand their rights and obligations under the law or
8    applicable instruments or covenants. Mistakes and
9    misunderstandings are inevitable and may lead to serious,
10    costly, and divisive problems. This Act seeks to educate
11    unit owners, condominium associations, common interest
12    community associations, boards of managers, and boards of
13    directors about the Condominium Property Act and the Common
14    Interest Community Association Act. Effective education
15    can prevent or reduce the severity of problems within a
16    condominium or common interest community.
17        (2) Anecdotal accounts of abuses within condominiums
18    and common interest communities create continuing public
19    demand for reform of condominium and common interest
20    community property law. This results in frequent changes to
21    the law, making it difficult to understand and apply, and
22    imposes significant transitional costs on these
23    communities statewide. By collecting empirical data on the
24    nature and incidence of problems within these communities,
25    this Act will provide a sound basis for prioritizing reform
26    efforts, thereby increasing the stability of condominium

 

 

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1    and common interest community property law.
 
2    Section 15. Definitions. As used in this Act:
3    "Association" means a condominium association or common
4interest community association as defined in this Act.
5    "Board of managers" or "board of directors" means:
6        (1) a common interest community association's board of
7    managers or board of directors, whichever is applicable; or
8        (2) a condominium association's board of managers or
9    board or directors, whichever is applicable.
10    "Common interest community" means a property governed by
11the Common Interest Community Association Act.
12    "Common interest community association" has the meaning
13ascribed to it in Section 1-5 of the Common Interest Community
14Association Act.
15    "Condominium" means a property governed by the Condominium
16Property Act.
17    "Condominium association" means an association in which
18membership is a condition of ownership or shareholder interest
19of a unit in a condominium, cooperative, townhouse, villa, or
20other residential unit which is part of a residential
21development plan and that is authorized to impose an
22assessment, rents, or other costs that may become a lien on the
23unit or lot, and includes a unit owners' association as defined
24in subsection (o) of Section 2 of the Condominium Property Act
25and a master association as defined in subsection (u) of

 

 

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1Section 2 of the Condominium Property Act.
2    "Declaration" has the meaning ascribed to it in:
3        (1) Section 1-5 of the Common Interest Community
4    Association Act; or
5        (2) Section 2 of the Condominium Property Act.
6    "Department" means the Department of Financial and
7Professional Regulation.
8    "Director" means the Director of the Division of
9Professional Regulation.
10    "Division" means the Division of Professional Regulation
11within the Department of Financial and Professional
12Regulation.
13    "Office" means the Office of the Condominium and Common
14Interest Community Ombudsperson established under Section 20
15of this Act.
16    "Ombudsperson" means the Condominium and Common Interest
17Community Ombudsperson employed under Section 20 of this Act.
18    "Person" includes a natural person, firm, association,
19organization, partnership, business trust, corporation,
20limited liability company, or public entity.
21    "Secretary" means the Secretary of Financial and
22Professional Regulation.
23    "Unit" means a part of the condominium property or common
24interest community property designed and intended for any type
25of independent use.
26    "Unit owner" has the meaning ascribed to it in:

 

 

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1        (1) subsection (g) of Section 2 of the Condominium
2    Property Act; or
3        (2) Section 1-5 of the Common Interest Community
4    Association Act.
 
5    Section 20. Office of the Condominium and Common Interest
6Community Ombudsperson.
7    (a) There is created in the Division of Professional
8Regulation within the Department of Financial and Professional
9Regulation, under the supervision and control of the Secretary,
10the Office of the Condominium and Common Interest Community
11Ombudsperson.
12    (b) The Department shall employ an Ombudsperson and other
13persons as necessary to discharge the requirements of this Act.
14The Ombudsperson shall have the powers delegated to him or her
15by the Department, in addition to the powers set forth in this
16Act.
17    (c) Information and advice provided by the Ombudsperson has
18no binding legal effect and is not subject to the rulemaking
19provisions of the Illinois Administrative Procedure Act.
 
20    Section 25. Training and education.
21    (a) On or before July 1, 2017, the Ombudsperson shall offer
22training, educational materials, and courses to unit owners,
23associations, boards of managers, and boards of directors in
24subjects relevant to: (i) the operation and management of

 

 

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1condominiums and common interest communities; and (ii) the
2Condominium Property Act and the Common Interest Community
3Association Act.
4    (b) The Ombudsperson may charge a fee for training,
5educational materials, and courses provided under this
6Section.
 
7    Section 30. Website.
8    (a) The Office shall maintain on the Department's website
9the following information:
10        (1) the text of this Act, the Condominium Property Act,
11    the Community Interest Community Association Act, and any
12    other statute, administrative rule, or regulation that the
13    Ombudsperson determines is relevant to the operation and
14    management of a condominium association or common interest
15    community association;
16        (2) information concerning nonjudicial resolution of
17    disputes that may arise within a condominium or common
18    interest community;
19        (3) a description of the services provided by the
20    Ombudsperson and information on how to contact the
21    Ombudsperson for assistance; and
22        (4) any other information that the Ombudsperson
23    determines is useful to unit owners, associations, boards
24    of managers, and boards of directors.
25    (b) The Office shall make the information described in

 

 

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1subsection (a) of this Section available in printed form. The
2Office may establish a fee by rule for the purchase of printed
3materials.
 
4    Section 35. Written policy for resolving complaints.
5    (a) Each association, except for those outlined in Section
6(b) of this Section, shall adopt a written policy for resolving
7complaints made by unit owners. The association shall make the
8policy available to all unit owners upon request. The policy
9must include:
10        (1) a sample form on which a unit owner may make a
11    complaint to the association;
12        (2) a description of the process by which complaints
13    shall be delivered to the association;
14        (3) the association's timeline and manner of making
15    final determinations in response to a unit owner's
16    complaint; and
17        (4) a requirement that the final determination made by
18    the association in response to a unit owner's complaint be:
19            (i) made in writing;
20            (ii) made within a reasonable time after the unit
21        owner's original complaint; and
22            (iii) marked clearly and conspicuously as "final".
23    (b) Common interest community associations exempt from the
24Common Interest Community Association Act are not required to
25have a written policy for resolving complaints.

 

 

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1    (c) No later than 180 days after the effective date of this
2Act, associations existing on the effective date of this Act,
3except for those identified in subsection (b) of this Section,
4must establish and adopt the policy required under this
5Section.
6    (d) Associations first created after the effective date of
7this Act, except for those identified in subsection (b) of this
8Section, must establish and adopt the policy required under
9this Section at the time of initial registration as required by
10Section 65 of this Act.
11    (e) A unit owner may not bring a request for assistance
12under Section 40 of this Act for an association's lack of or
13inadequacy of a written policy to resolve complaints, but may
14notify the Department in writing of the association's lack of
15or inadequacy of a written policy. An association that fails to
16comply with this Section is subject to subsection (g) of
17Section 65 of this Act.
 
18    Section 40. Requests for assistance.
19    (a) Beginning on July 1, 2018, unit owners meeting the
20requirements of this Section may make a written request, as
21outlined in subsection (f) of this Section, to the Ombudsperson
22for assistance in resolving a dispute between a unit owner and
23an association that involves a violation of the Condominium
24Property Act or the Common Interest Community Property Act.
25    (b) The Ombudsperson shall not accept requests for

 

 

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1resolutions of disputes with community association managers,
2supervising community association managers, or community
3association management firms, as defined in the Community
4Association Manager Licensing and Disciplinary Act.
5    (c) The Ombudsperson shall not accept requests for
6resolutions of disputes for which there is a pending complaint
7filed in any court or administrative tribunal in any
8jurisdiction or for which arbitration or alternative dispute
9resolution is scheduled to occur or has previously occurred.
10    (d) The assistance described in subsection (a) of this
11Section is available only to unit owners. In order for a unit
12owner to receive the assistance from the Ombudsperson described
13in subsection (a) of this Section, the unit owner must:
14        (1) owe no outstanding assessments, fees, or funds to
15    the association, unless the assessments, fees, or funds are
16    central to the dispute;
17        (2) allege a dispute that was initiated or initially
18    occurred within the past 2 calendar years of the date of
19    the request;
20        (3) have made a written complaint pursuant to the unit
21    owner's association's complaint policy, as outlined in
22    Section 35, which alleges violations of the Condominium
23    Property Act or the Common Interest Community Association
24    Act;
25        (4) have received a final and adverse decision from the
26    association and attach a copy of the association's final

 

 

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1    adverse decision marked "final" to the request to the
2    Ombudsperson; and
3        (5) have filed the request within 30 days after the
4    receipt of the association's final adverse decision.
5    (e) A unit owner who has not received a response, marked
6"final", to his or her complaint from the association within a
7reasonable time may request assistance from the Ombudsperson
8pursuant to subsection (a) of this Section if the unit owner
9meets the requirements of items (1), (2), and (3) of subsection
10(d) of this Section. A unit owner may not request assistance
11from the Ombudsperson until at least 90 days after the initial
12written complaint was submitted to the association. The
13Ombudsperson may decline a unit owner's request for assistance
14on the basis that a reasonable time has not yet passed.
15    (f) The request for assistance shall be in writing, on
16forms provided by the Office, and include the following:
17        (1) the name, address, and contact information of the
18    unit owner;
19        (2) the name, address, and contact information of the
20    association;
21        (3) the applicable association governing documents
22    unless the absence of governing documents is central to the
23    dispute;
24        (4) the date of the final adverse decision by the
25    association;
26        (5) a copy of the association's written complaint

 

 

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1    policy required under Section 35 of this Act;
2        (6) a copy of the unit owner's complaint to the
3    association with a specific reference to the alleged
4    violations of the Condominium Property Act or the Common
5    Interest Community Association Act;
6        (7) documentation verifying the unit owner's ownership
7    of a unit, such as a copy of a recorded deed or other
8    document conferring title; and
9        (8) a copy of the association's adverse decision marked
10    "final", if applicable.
11    (g) On receipt of a unit owner's request for assistance
12that the Department determines meets the requirements of this
13Section, the Ombudsperson shall, within the limits of the
14available resources, confer with the interested parties and
15assist in efforts to resolve the dispute by mutual agreement of
16the parties.
17    (h) The Ombudsperson shall assist only opposing parties who
18mutually agree to participate in dispute resolution.
19    (i) A unit owner is limited to one request for assistance
20per dispute. The meaning of dispute is to be broadly
21interpreted by the Department.
22    (j) The Department has the authority to determine whether
23or not a final decision is adverse under paragraph (4) of
24subsection (d) of this Section.
25    (k) The Department shall establish rules describing the
26time limit, method, and manner for dispute resolution.

 

 

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1    (l) A request under the Freedom of Information Act for
2information does not constitute a request for assistance under
3this Section.
 
4    Section 45. Confidentiality. All information collected by
5the Department in the course of addressing a request for
6assistance pursuant to Section 40 shall be maintained for the
7confidential use of the Department and shall not be disclosed.
8The Department shall not disclose the information to anyone
9other than law enforcement officials or regulatory agencies
10that have an appropriate regulatory interest as determined by
11the Secretary. Information and documents disclosed to a
12federal, State, county, or local law enforcement agency shall
13not be disclosed by that agency for any purpose to any other
14agency or person.
 
15    Section 50. Reports.
16    (a) The Department shall submit an annual written report on
17the activities of the Office to the General Assembly, no later
18than October 1 of each year, with the initial report being due
19October 1, 2019. The report shall include all of the following:
20        (1) annual workload and performance data, including
21    the number of requests for assistance received, the manner
22    in which requests were or were not resolved and the staff
23    time required to resolve the requests. For each category of
24    data, the report shall provide subtotals based on the type

 

 

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1    of question or dispute involved in the request; and
2        (2) analysis of the most common and serious types of
3    disputes within condominiums and common interest
4    communities, along with any recommendations for statutory
5    reform to reduce the frequency or severity of those
6    disputes.
 
7    Section 55. Fees. The Department shall by rule impose
8nonrefundable fees for the administration and enforcement of
9this Act. All of the fees collected under this Act shall be
10deposited into the Condominium and Common Interest Community
11Ombudsperson Fund.
 
12    Section 60. Condominium and Common Interest Community
13Ombudsperson Fund. The Condominium and Common Interest
14Community Ombudsperson Fund is hereby created as a special fund
15in the State treasury. All moneys in the fund, upon
16appropriation by the General Assembly, shall be used
17exclusively for expenditures by the Department that are
18necessary for the proper administration and enforcement of this
19Act.
 
20    Section 65. Registration.
21    (a) Except as otherwise provided in subsections (d) and (f)
22of this Section, every association shall register with the
23Department in a form and manner specified by the Department. A

 

 

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1registration shall be valid for 2 years. The initial
2registration and fee for associations existing on the effective
3date of this Act are due 180 days after the effective date of
4this Act.
5    (b) Newly created associations required to register with
6the Department must register no later than 90 days after the
7association has assumed control of a property.
8    (c) The Department may issue a certification of
9registration under this Act to any association that applies to
10the Department on forms provided by the Department, pays the
11required non-refundable fee, and provides the following:
12        (1) the business name of the association seeking
13    registration;
14        (2) the business address or addresses and contact
15    information of the association seeking registration;
16        (3) the name, address, and contact information for the
17    association's authorized agent or management company and
18    management company representative;
19        (4) a certification that the applicant has a written
20    policy for resolving complaints as required by Section 35
21    of this Act;
22        (5) the initial date of recording of the declaration;
23        (6) the recording number or book and page for the
24    document that constitutes the declaration; and
25        (7) a certification that the association will comply
26    with all other requirements of this Act and rules

 

 

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1    established for the implementation of this Act.
2    (d) This Section does not apply to a unit, or the owner
3thereof, if the unit is a timeshare property subject to the
4Real Estate Timeshare Act of 1999.
5    (e) If any of the information submitted under subsection
6(c) of this Section changes, the association shall provide
7updated information to the Department no later than 60 days
8after the change.
9    (f) A common interest community association is exempt from
10registration if it is exempt from the Common Interest Community
11Association Act.
12    (g) An association that fails to properly register or whose
13registration has expired or who fails to timely establish a
14written policy for resolving complaints, as described in
15Section 35, is ineligible to impose or enforce a lien for
16assessments or to pursue any action or employ any enforcement
17mechanism otherwise available to it until it is validly
18registered pursuant to this Section. A lien for assessments
19previously filed during a period in which the association was
20registered pursuant to this Section shall not be extinguished
21by a lapse in the association's registration, but any pending
22enforcement proceedings related to the lien shall be suspended
23and any applicable time limits tolled until the association is
24again validly registered pursuant to this Section.
 
25    Section 70. Returned checks; fines. Any person who delivers

 

 

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1a check or other payment to the Department that is returned to
2the Department unpaid by the financial institution upon which
3it is drawn shall pay to the Department, in addition to the
4amount already owed to the Department, a fine of $50. The
5Department shall notify the person that the payment of fees
6shall be paid to the Department by certified check or money
7order within 30 calendar days of the notification. If, after
8the expiration of 30 days after the date of the notification,
9the person has failed to submit the necessary remittance, the
10Department shall automatically terminate the registration or
11deny the application, without hearing. If, after termination or
12denial, the person seeks a registration, he or she shall apply
13to the Department for restoration or issuance of the
14registration and pay all fees and fines due to the Department.
 
15    Section 75. Rules. The Department may adopt rules for the
16administration and enforcement of this Act. Any rule adopted
17under this Act is subject to the rulemaking provisions of the
18Illinois Administrative Procedure Act.
 
19    Section 80. State Lawsuit Immunity Act. Nothing in this Act
20shall be construed to constitute a waiver of the immunity of
21the State, Department, Division, Office, or Ombudsperson, or
22any officer, employee, or agent thereof under the State Lawsuit
23Immunity Act.
 

 

 

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1    Section 85. Repeal. This Act is repealed on July 1, 2020.
 
2    Section 90. The State Finance Act is amended by adding
3Section 5.855 as follows:
 
4    (30 ILCS 105/5.855 new)
5    Sec. 5.855. The Condominium and Common Interest Community
6Ombudsperson Fund.
 
7    Section 95. The Condominium Property Act is amended by
8adding Section 35 as follows:
 
9    (765 ILCS 605/35 new)
10    Sec. 35. Compliance with the Condominium and Common
11Interest Community Ombudsperson Act. Every unit owners'
12association must comply with the Condominium and Common
13Interest Community Ombudsperson Act and is subject to all
14provisions of the Condominium and Common Interest Community
15Ombudsperson Act. This Section is repealed July 1, 2020.
 
16    Section 100. The Common Interest Community Association Act
17is amended by adding Section 1-90 as follows:
 
18    (765 ILCS 160/1-90 new)
19    Sec. 1-90. Compliance with the Condominium and Common
20Interest Community Ombudsperson Act. Every common interest

 

 

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1community association, except for those exempt from this Act
2under Section 1-75, must comply with the Condominium and
3Community Interest Community Ombudsperson Act and is subject to
4all provisions of the Condominium and Community Interest
5Community Ombudsperson Act. This Section is repealed July 1,
62020.
 
7    Section 999. Effective date. This Act takes effect July 1,
82015.".