Constitutional Challenge To "no Defense To Non-payment" Section Of Code

In a recent Court of Appeals case out of Summit County, an association filed foreclosure for non-payment of assessments and the homeowner filed a counterclaim alleging the association failed to maintain her unit and refused to accept payments that she tried to make. The counterclaim was dismissed because the owner could not establish that the Association wrongfully refused to accept payment after she was in default. The foreclosure was granted and the owner filed an appeal.

The owner asserted her counterclaim was wrongfully dismissed and that §5311.18(B)(6) is unconstitutional. That code section states that in foreclosure actions, it is no defense, set off or counterclaim that the association failed to provide the owner with any good, service, work, material, or failed in any other duty. ORC § 5311.18(B)(6). The owner claimed that the statute was unconstitutional because it violated her right to seek redress in Ohio courts.

Ultimately, the argument failed because it was raised on appeal, and no new arguments can be heard by the appeals court without it first being a part of the trial court case, so the unconstitutional argument was forfeited for the appeal.

The argument of the Association was that the owner had redress provided in the statute that she failed to exercise. In §5311.18(C) an owner who feels that a lien is placed on their unit in error can file an action to discharge the lien in common pleas court.

The issue of constitutionality of that section was not decided in this case because the owner failed to bring the issue into the case at the trial court level. However, it is important for all associations to note that this issue is out there and that the idea to challenge the constitutionality of these provisions in Ch. 5311 and Ch. 5312 is out there.

Prescott Green Condominium Association v. Walker, CA No. 24848, Ohio App Ct. June 9, 2010

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