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92nd General Assembly

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Public Act 92-0518

SB1046 Re-enrolled                             LRB9202778DJcs

    AN ACT in relation to property.

    Be it  enacted  by  the  People  of  the  State  of  Illinois,
represented in the General Assembly:

    Section 5.  The Condominium Property Act  is  amended  by
changing Sections 12 and 12.1 as follows:

    (765 ILCS 605/12)
    Sec. 12.  Insurance.
    (a)  Required  coverage.  No policy of insurance shall be
issued or delivered to  a  condominium  association,  and  no
policy of insurance issued to a condominium association shall
be  renewed,  unless  the insurance coverage under the policy
includes the following:
         (1)  Property insurance. Property insurance  (i)  on
    the  common elements and the units, including the limited
    common elements and except as otherwise determined by the
    board of managers, the bare walls, floors,  and  ceilings
    of  the  unit,  (ii)  providing coverage for special form
    causes of loss, and (iii) in a total amount of  not  less
    than  the  full insurable replacement cost of the insured
    property, less deductibles, but  including  coverage  for
    the  increased costs of construction due to building code
    requirements, at the time the insurance is purchased  and
    at each renewal date.
         (2)  General liability insurance. Commercial general
    liability   insurance   against  claims  and  liabilities
    arising in connection with the ownership, existence, use,
    or management of the property  in  a  minimum  amount  of
    $1,000,000,  or a greater amount deemed sufficient in the
    judgment  of  the  board,   insuring   the   board,   the
    association,  the  management agent, and their respective
    employees and agents and all persons  acting  as  agents.
    The  developer  must be included as an additional insured
    in its capacity as a unit owner, manager,  board  member,
    or   officer.   The  unit  owners  must  be  included  as
    additional  insured  parties  but  only  for  claims  and
    liabilities arising in  connection  with  the  ownership,
    existence, use, or management of the common elements. The
    insurance  must  cover  claims  of  one  or  more insured
    parties against other insured parties.
         (3)  Fidelity bond; directors and officers coverage.
              (A)  An association with  6  or  more  dwelling
         units  must  obtain  and  maintain  a  fidelity bond
         covering persons, including the managing  agent  and
         its  employees  who control or disburse funds of the
         association, for  the  maximum  amount  of  coverage
         available to protect funds in the custody or control
         of  the  association,  plus  the association reserve
         fund.
              (B)  All   management   companies   that    are
         responsible  for  the  funds held or administered by
         the association must be covered by a  fidelity  bond
         for  the  maximum  amount  of  coverage available to
         protect those funds. The association has standing to
         make a loss claim against the bond of  the  managing
         agent as a party covered under the bond.
              (C)  For  purposes  of  paragraphs (A) and (B),
         the fidelity bond must be  in  the  full  amount  of
         association funds and reserves in the custody of the
         association or the management company.
              (D)  The   board   of   directors  must  obtain
         directors and officers liability coverage at a level
         deemed reasonable by the  board,  if  not  otherwise
         established  by the declaration or bylaws. Directors
         and officers liability coverage must extend  to  all
         contracts  and  other  actions taken by the board in
         their official capacity as directors  and  officers,
         but  this  coverage  shall exclude actions for which
         the directors are not  entitled  to  indemnification
         under  the General Not For Profit Corporation Act of
         1986  or  the  declaration   and   bylaws   of   the
         association.
    (b)  Contiguous  units; improvements and betterments. The
insurance maintained under subdivision  (a)(1)  must  include
the  units,  the  limited common elements except as otherwise
determined by the board of managers, and the common elements.
The insurance need not cover improvements and betterments  to
the  units  installed by unit owners, but if improvements and
betterments are covered, any increased cost may  be  assessed
by the association against the units affected.
    Common  elements  include  fixtures  located  within  the
unfinished  interior surfaces of the perimeter walls, floors,
and ceilings of the individual units initially  installed  by
the  developer.  Common  elements  exclude  floor,  wall, and
ceiling coverings. "Improvements and betterments"  means  all
decorating,  fixtures,  and furnishings installed or added to
and located within the  boundaries  of  the  unit,  including
electrical fixtures, appliances, air conditioning and heating
equipment,  water  heaters, or built-in cabinets installed by
unit owners.
    (c)  Deductibles.  The  board   of   directors   of   the
association  may, in the case of a claim for damage to a unit
or the common elements, (i) pay the deductible  amount  as  a
common  expense,  (ii)  after notice and an opportunity for a
hearing, assess the deductible amount against the owners  who
caused  the damage or from whose units the damage or cause of
loss originated, or (iii) require  the  unit  owners  of  the
units affected to pay the deductible amount.
    (d)  Other  coverages.  The  declaration  may require the
association to carry any other insurance,  including  workers
compensation,  employment  practices,  environmental hazards,
and equipment breakdown, the  board  of  directors  considers
appropriate  to  protect the association, the unit owners, or
officers, directors, or agents of the association.
    (e)  Insured parties; waiver  of  subrogation.  Insurance
policies  carried  pursuant  to  subsections (a) and (b) must
include each of the following provisions:
         (1)  Each unit owner and secured party is an insured
    person under the policy with respect to liability arising
    out of the unit owner's interest in the  common  elements
    or membership in the association.
         (2)  The  insurer  waives  its  right to subrogation
    under  the  policy  against  any  unit   owner   of   the
    condominium  or members of the unit owner's household and
    against the association  and  members  of  the  board  of
    directors.
         (3)  The  unit  owner  waives  his  or  her right to
    subrogation under  the  association  policy  against  the
    association and the board of directors.
    (f)  Primary  insurance.  If  at the time of a loss under
the policy there is other insurance in the  name  of  a  unit
owner  covering  the same property covered by the policy, the
association's policy is primary insurance.
    (g)  Adjustment of losses; distribution of proceeds.  Any
loss  covered by the property policy under subdivision (a)(1)
must be adjusted by and with the association.  The  insurance
proceeds for that loss must be payable to the association, or
to  an  insurance  trustee  designated by the association for
that purpose. The insurance trustee or the  association  must
hold  any  insurance  proceeds  in  trust for unit owners and
secured parties as their interests may appear.  The  proceeds
must  be disbursed first for the repair or restoration of the
damaged common elements, the bare walls, ceilings, and floors
of the units, and then to any  improvements  and  betterments
the  association  may insure. Unit owners are not entitled to
receive any portion of the proceeds unless there is a surplus
of proceeds after the common elements  and  units  have  been
completely  repaired  or restored or the association has been
terminated as trustee.
    (h)  Mandatory  unit  owner  coverage.   The   board   of
directors  may,  under the declaration and bylaws or by rule,
require condominium unit owners to obtain insurance  covering
their   personal   liability   and   compensatory   (but  not
consequential)  damages  to  another  unit  caused   by   the
negligence  of  the owner or his or her guests, residents, or
invitees, or regardless of any  negligence  originating  from
the   unit.  The  personal  liability  of  a  unit  owner  or
association member must include the deductible of  the  owner
whose  unit  was damaged, any damage not covered by insurance
required by this  subsection,  as  well  as  the  decorating,
painting,   wall   and  floor  coverings,  trim,  appliances,
equipment, and other furnishings.
    If the unit owner does not purchase or  produce  evidence
of  insurance  requested  by  the  board,  the  directors may
purchase the insurance coverage and charge the  premium  cost
back  to  the  unit owner. In no event is the board liable to
any person either with regard to its decision not to purchase
the insurance, or with regard to the timing of  its  purchase
of  the  insurance  or  the  amounts  or  types  of coverages
obtained.
    (i)  Certificates of insurance.  Contractors and  vendors
(except  public  utilities) doing business with a condominium
association under contracts exceeding $10,000 per  year  must
provide certificates of insurance naming the association, its
board  of  directors,  and  its  managing agent as additional
insured parties.
    (j)  Non-residential condominiums. The provisions of this
Section may be varied or waived in the case of a  condominium
community in which all units are restricted to nonresidential
use.
    (k)  Settlement   of  claims.  Any  insurer  defending  a
liability claim against a condominium association must notify
the association of the terms of the settlement no  less  than
10  days  before  settling the claim. The association may not
veto the settlement unless otherwise provided by contract  or
statute.  )   (a)  (1)  The  board of managers shall have the
authority to and shall obtain, except as  otherwise  provided
in  Section  12.1, insurance for the property against loss or
damage by fire and such other hazards as  are  covered  under
standard  extended coverage provisions for the full insurable
replacement cost of the common elements and the units.  Every
insurer  issuing  a policy against loss or damage by fire and
such other hazards as are  covered  under  standard  extended
coverage  to  a  condominium  association  shall  print on or
attach to the premium notice the  following  statement:  "The
Condominium   Property   Act   requires   every   condominium
association to obtain insurance for the property against loss
or damage by fire and such other hazards as are covered under
the  standard  extended  coverage  provisions  for  the  full
insurable  replacement  costs.   This  policy  may or may not
satisfy  this  requirement.   Please  examine   your   policy
carefully   to   determine   if   it   complies   with  these
requirements." The full insurable  replacement  cost  of  the
units  may  include the replacement cost value of betterments
and improvements made in and to a unit by a unit owner if  it
is  so  provided by the condominium declaration, and if it is
so provided in  the  condominium  instruments,  any  increase
premium  charge therefor shall be assessed to that unit owner
under the provisions of Section 9 hereof.
    (2)  Such insurance coverage shall be written in the name
of, and the proceeds thereof shall be deemed payable to,  the
board  of managers, as trustee for each of the unit owners in
the percentages established in the declaration. Any insurance
policy obtained for the property pursuant to paragraph (1) of
subsection (a) of this Section, which fails  to  contain  the
trustee  provisions  required by this paragraph (2), shall be
deemed to incorporate such  provisions  into  the  policy  by
operation of law.
    (3)  The board of managers, or the persons acting in such
capacity pursuant to Section 18.2 of  this  Act,  shall  have
authority  to  designate  any corporation qualified to accept
and execute trusts in this state to act as agent  or  trustee
for,  or  as successor trustee to, said board of managers for
the purpose of collecting and disbursing the proceeds of such
insurance in the manner  provided  by  the  declaration,  the
bylaws,  and  this Act. Premiums for such insurance and other
expenses in connection therewith shall be common expenses.
    (b)  The board of managers shall have the  authority  and
duty  to  obtain  comprehensive  public  liability  insurance
against claims and liabilities arising in connection with the
ownership,  existence,  use  or management of the property in
amounts, if any, specified by the condominium instruments  or
otherwise  deemed  sufficient in the judgment of the board of
managers, insuring the board of managers,  the  unit  owners'
association,  the  management  agent,  and  their  respective
employees,  agents  and  all  persons  acting as agents.  The
developer shall be included as an additional insured  in  his
capacity  as  unit  owner  and board member.  The unit owners
shall be  included  as  additional  insureds  but  only  with
respect  to  that  portion  of  the premises not reserved for
their exclusive use.  The insurance shall cover claims of one
or more insured parties against other  insured  parties.  The
insurance shall contain a waiver of any rights to subrogation
by  the  insuring  company  against  any  of  the above named
insured persons.  Premiums for such insurance shall be common
expenses.
    (c)  The board of managers shall notify  insured  persons
concerning the cancellation of insurance obtained pursuant to
the terms of this Section.
    (d)  Any  insurer defending a claim against a condominium
association shall notify the association of the terms of  the
settlement  before settling the claim.  The association shall
not have power to  veto  such  settlement,  unless  otherwise
provided by contract or statute.
(Source: P.A. 84-1431; 84-1464.)

    (765 ILCS 605/12.1) (from Ch. 30, par. 312.1)
    Sec. 12.1.  Insurance risk pooling trusts.
    (a)  This  Section shall be known and may be cited as the
Condominium and Common Interest Community Risk Pooling  Trust
Act.
    (b)  The  boards  of  managers or boards of directors, as
the case may be, of two or more condominium  associations  or
common  interest  community  associations,  are authorized to
establish, with the unit owners and the condominium or common
interest community associations as the beneficiaries thereof,
a trust fund for the purpose of providing protection  of  the
participating   condominium  and  common  interest  community
associations against the risk of financial loss due to damage
to, destruction of or loss of property, or the imposition  of
legal  liability  as required or authorized under this Act or
the  declaration  of  the  condominium  or  common   interest
community  association.   Such  trust  fund  shall  initially
assess   unit   owners  an  amount  actuarially  adequate  to
establish such fund and shall  assess  such  amounts  as  are
required  to maintain such fund.  Such amounts may be treated
as  assessments  of  the  condominium  or   common   interest
community association.
    (c)  The trust fund shall be established and amended only
by  a  written  instrument  which  shall  be  filed  with and
approved by the Director of Insurance prior to  its  becoming
effective.  The Director of Insurance shall withhold approval
of any instrument if it does not comply with  the  provisions
of  this Section or any rule or regulation of the Director of
Insurance.
    (d)  No common interest community association shall be  a
beneficiary  of  the  trust  fund  unless  it either shall be
incorporated under the laws of this State or shall have first
procured a Certificate of Authority  from  the  Secretary  of
State.
    (e)  The  trust  fund  is  authorized  to  indemnify  the
condominium   and   common   interest  community  association
beneficiaries thereof against the risk of loss due to damage,
destruction or  loss  to  property  or  imposition  of  legal
liability  as  required  or  authorized under this Act or the
declaration of the condominium or common  interest  community
association.  The trustee of the trust fund may determine and
establish  contributions  to  the  trust   fund   actuarially
required to fund the operations and carry out the purposes of
the trust fund and may enter into contracts in order to carry
out  the  purposes  for which the trust fund was established,
provided however, that any such contracts shall  not  provide
for  compensation  or  payments  in  excess  of that which is
reasonable in relation to  the  services  actually  performed
thereunder.
    (f)  The  trust  fund  may  enter into written agreements
with other trust funds established under this Section whereby
the Risks assumed by the any such trust fund  may  be  pooled
and shared with such other trust funds established under this
Section.
    (g)  (Blank). The trustees of all trust funds established
under  this  Act  shall be natural persons over the age of 18
who are residents of this State.
    (h)  (Blank). Every such trust fund shall have  no  fewer
than  3  nor  more than 30 trustees.  No less than 2/3 of the
trustees shall be officers, directors, trustees or full  time
employees  of  a  condominium  or  common  interest community
association beneficiary of the trust fund.
    (i)  No trustee of the trust fund shall be paid a  salary
or  receive other compensation, except that the written trust
instrument may provide for reimbursement for actual  expenses
incurred  on  behalf  of  the  trust fund.  No trustee or any
employer or affiliate of any trustee of the trust fund  shall
enter  into  any contract with the trust fund for, or receive
any monies or other compensation or thing of value whatsoever
from, the trust fund for services performed for or on  behalf
of  such  trust  fund,  except  as otherwise provided in this
Section.
    (j)  (Blank). The trustees shall serve  pursuant  to  the
terms of the written trust instrument except that the written
trust  instrument  shall  set  forth  the  manner  in which a
trustee of a trust fund may be  removed  and  the  manner  in
which  vacancies  among the trustees of the trust fund may be
filled.
    (k)  (Blank). No trustee of the trust  fund  shall  serve
for more than 3 consecutive years unless he is reappointed in
the manner provided for in the written trust instrument.
    (l)  (Blank).  The  trustees of the trust fund shall have
the powers specified in the written  trust  instrument  which
established the trust fund.
    (m)  Each  trust  fund  shall by June 1 of each year file
annually with the Director of Insurance a full  independently
audited  financial  statement.  as  of  December  31  of  the
preceding  year,  and by April 1 of each year a report of the
trustees of the trust fund detailing the  operations  of  the
trust  fund  and including a list of all beneficiaries during
the year and  a  statement  that  each  beneficiary  was  not
ineligible except as provided for in this Section.  The truth
and  accuracy  of the financial statement and report shall be
attested to by each trustee. The  financial  statement  shall
include  the  opinion  of  an  independent  certified  public
accountant  on  the financial condition of the trust fund for
the  most  recent  calendar  year  and  the  results  of  its
operations, changes in  financial  position  and  changes  in
capital  and  surplus  for  the year then ended in conformity
with accounting practices  permitted  or  prescribed  by  the
Illinois Department of Insurance.
    (n)  (Blank).   A  beneficiary is ineligible if he or she
ceases to be a unit owner of a condominium or common interest
community  association,  except  where  liability   of   such
beneficiary  was  incurred  at  the time he or she was a unit
owner.
    (o)  (Blank). No beneficiary  shall  have  any  cause  of
action  against  any  other beneficiary arising solely out of
the insolvency or inability of the trust  fund  to  meet  its
obligations,  unless  such  other beneficiary is a trustee of
such  trust  fund  and  has  breached  a  fiduciary  duty  in
connection with such trust fund. This  subsection  shall  not
preclude the assessment and collection of any payments to the
trust  fund  to  correct  such insolvency or inability of the
trust fund to meet its obligations.
    (p)  (Blank).  No  trust  fund  established  under   this
subsection  (d)  shall grant any power to the trustees of the
trust fund which is inconsistent with  this  Section  or  any
other law of this State.
    (q)  (Blank).  Every  trust  fund  established  hereunder
shall  include in the written trust instrument the basis upon
which payments are made to and from the trust fund.
    (r)  (Blank). Trust funds established under this  Section
and all persons interested therein or dealing therewith shall
be  subject  to  the  provisions of Sections 133, 144, 144.1,
149, 401,  401.1,  402,  403,  403A,  412,  and  all  of  the
provisions of Articles VII, VIII, VIII 1/2, XII 1/2, and XIII
of  the Illinois Insurance Code. Except as otherwise provided
in this Section, trust  funds  established  under  and  which
fully  comply  with  this Section shall not be subject to any
other provision of the Illinois Insurance Code.
    (s)  The Director of Insurance shall have with respect to
trust funds established under  this  Section  the  powers  of
examination   conferred   upon   him  relative  to  insurance
companies by  Section  Sections  132  through  132.7  of  the
Illinois  Insurance  Code.   The cost of any such examination
shall be paid by the trust fund examined.
    (t)  (Blank). The Director  of  Insurance  shall  charge,
collect  and  give proper acquittances for the payment of the
following fees and charges:
         (i)  For  filing   trust   instruments,   amendments
    thereto   and  financial  statement  and  report  of  the
    trustees, $25.
         (ii)  For copies of papers or records per  page, $1.
         (iii)  For certificate to copy of paper, $5.
         (iv)  For filing an application for the licensing of
    a condominium risk pooling trust, $500.
    (u)  (Blank). This Section shall apply regardless of  any
contrary provisions of any instrument.
    (v)  Trust funds established under and which fully comply
with  this  Section  shall not be considered member insurance
companies or to be in the business of insurance nor shall the
provision of Article XXXIV of  the  Illinois  Insurance  Code
apply to any such trust fund established under this Section.
    (w)  (Blank). The provisions of the Administrative Review
Law  shall  apply  to  and  govern  all  proceedings  for the
judicial review of final administrative decisions under  this
Section.
    (x)  The  Director  of  Insurance  shall adopt reasonable
rules  pertaining  to   the   standards   of   coverage   and
administration of trust funds authorized under this Section.
(Source: P.A. 89-97, eff. 7-7-95.)
    Passed in the General Assembly May 08, 2001.
    Governor Amendatory Veto August 03, 2001.
    General Assembly Accepts Amendatory Veto November 27, 2001.
    Returned to Governor for Certification December 07, 2001.
    Governor Certifies Changes January 01, 2002.

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