Handling Condominium Disputes

A. Condominium Concepts

1. Organizational Documents
   1. Declaration
   2. By-laws
   3. Rules and Regulation
2. As a matter of law, the rights and duties of the condominium association and unit owners are defined and regulated by the Ohio Condominium Act and the 1978 amendments thereto. "It is clear that the Ohio Condominium Act and the 1978 amendments to the Act create relationships, rights and remedies which did not exist in common law. The scope of the Act convinces us that it was meant to comprehensively define and regulate the law of condominium development." (Emphasis in original) Belvedere Condominium Unit Owners Assn. v. RE Roark Cos., Inc. (1993), 67 Ohio St. 3d 274, 282.
3. Common Interest Community
   1. Mandatory membership upon purchase (R.C. 5311.05(B)(7)
   2. Subject to governing documents i. (R.C. §5311.19) ii. The Bluffs of Wildwood Homeowners' Association, Inc. v. Dinkel (1994), 96 Ohio App.3d 278, 282.
   3. Shared use and enjoyment of property
4. Condominiums Are Not Castles
   1. "A unit owner should not be permitted to act in derogation of a condominium declaration whenever he or she may have a legitimate personal interest to advance in so doing. Condominium declarations established pursuant to Ohio's Condominium Act must be strictly construed, since the condominium concept depends upon reasonable use and occupancy rules and restrictions."
   2. *** Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be. *** Georgetown Arms Condominium Unit Owners Assoc. v. Super (1986), 33 Ohio App.3d 132.

B. Types of Disputes

1. Disputes involving Rules and Regulations
   1. Noise
   2. Parking -- location, commercial vehicles
   3. Nuisance -- noise, guests, parties, nudity
   4. Pets
   5. Crimes
   6. Right of access (R.C. §5311.03(F))
2. Disputes involving Board Authority
   1. Can they assess unit owners
   2. Can they borrow
   3. Maintenance and repair versus capital improvements
   4. Limits on Board spending
   5. Open meetings / open records
   6. "Shall" versus "must" enforce
   7. Business judgment rule
   8. Architectural review committees
3. Disputes involving Governing Documents
   1. Common areas / Limited common areas /
   2. Unit
   3. Whose responsibility is it to make repairs
   4. Who has authority to make / mandate repairs
   5. Unit owner additions to their units
   6. Patios
   7. Patio enclosures
   8. Skylights
   9. Structural changes to the unit
   10. Adding gas lines
   11. Satellite dishes / antennas
4. Disputes involving Federal Legislation
   1. Americans with Disabilities
   2. Fair Housing Act
5. Condo Commando
   1. "Common sense is the collection of prejudices acquired by age eighteen." Albert Einstein
   2. Not necessarily a bad thing

C. Non Judicial Methods of Resolution

1. Internal Resolution Mechanism
   1. Documentation, documentation, documentation i. Dog poop cases ii. Harassment
   2. Correspondence i. Property manager ii. Board
   3. Hearing
   4. Penalty assessment versus fines
2. Failure of Internal Dispute Resolution
   1. a. Alternative Dispute Resolution i. Type of dispute ii. Mediation iii. Unit owner meeting / renters
3. Communicate, communicate, communicate
   1. Open Board Meetings i. Notice ii. Regular meetings iii. Convenient location
   2. Open records i. Proper minutes of meetings ii. Distribution of minutes / newsletters

D. Judicial Methods of Resolution (R.C. §5311.20)

1. Injunctive relief (R.C. §5311.23)
2. Declaratory judgment
3. Damages
4. Dispossession of unit owner
5. Rule of Reasonableness
   1. Under the reasonableness test, a reviewing court must determine: i. Whether the decision or rule was arbitrary; ii. Whether the decision or rule was applied in an even-handed or discriminatory manner; and iii. whether the decision or rule was made in good faith for the common welfare of the owners and occupants of the condominium. Id. at 282; Worthinglen Condominium Unit Owners Assn. v. Brown (1989), 57 Ohio App.3d 73, 76.
   2. "The reasonableness test offers some guidelines for courts to use when reviewing condominium restrictions. However, where the restriction is contained in a condominium declaration and is in existence prior to the purchase of a condominium unit, the reasonableness test has less relevance. In such a case, it must be remembered that it has long been recognized that persons have a fundamental right to contract freely with the expectation that the terms of the contract will be enforced. This freedom 'is as fundamental to our society as the right to write and to speak without restraint.' ... Government interference with this right must therefore be restricted to those exceptional cases where intrusion is absolutely necessary, such as contracts promoting illegal acts..." Nottingdale Homeowners' Assn., Inc. v. Darby (1987), 33 Ohio St.3d 32, 36, 514 N.E.2d 702, 705-06. The Bluffs of Wildwood Homeowners' Association, Inc. v. Dinkel (1994), 96 Ohio App.3d 278, 282

E. Cost of Enforcement / Collection Provisions

1. Nottingdale Homeowners' Assn., Inc. v. Darby (1987), 33 Ohio St.3d 32, 514 N.E.2d 702

F. Conclusion

Over the years, we have all witnessed community association attorneys who tell their clients what they believe the clients want to hear and not what they should hear. This is not only bad but conceivably could be a breach of attorney ethics. As lawyers, we must tell the client the truth no matter how much it may hurt and work to solve problems before they escalate into litigation. Many cases and expensive legal battles could have been avoided if the Association attorney had handled it better.

OHIO CONDOMINIUM ACT

R.C. Chapt. 5311

(pertinent provisions)

5311.03(F) UNITS DEEMED REAL PROPERTY Each unit shall be subject to the right of access for the purpose of maintenance, repair, or service of any common area and facility located within its boundaries or of any portion of the unit itself by persons authorized by the board of managers of the unit owners association. No maintenance, repair, or service of any portion of a unit shall be authorized, however, unless it is necessary in the opinion of the board of managers for public safety or in order to prevent damage to or destruction of any other part of the condominium property.

5311.05(B)(7) DECLARATION AND INFORMATION REQUIRED A statement that each unit owner shall be a member of a unit owners association which shall be established for the administration of the condominium property;

5311.19 DEED RESTRICTIONS All unit owners, their tenants, and all persons lawfully in possession and control of any part of the condominium property shall comply with all covenants, conditions, and restrictions set forth in a deed to which they are subject or in the declaration, bylaws of the unit owners association, or administrative rules and regulations adopted pursuant to the provisions thereof, as any of the same may be lawfully amended from time to time, and violations thereof shall be grounds for actions for damages or injunctive relief, or both, brought by the unit owners association, by a unit owner or unit owners, or by both.

5311.20 ACTIONS BY OR AGAINST UNIT OWNERS ASSOCIATION; SERVICE OF SUMMONS In any action relating to the common areas and facilities or to any right, duty, or obligation possessed or imposed upon the unit owners association, by statute or otherwise, the unit owners association may sue or be sued as a separate legal entity. In any such action, service of summons or other process may be made upon the unit owners association by serving the same personally upon the president or other chief officer thereof or upon the person named in the declaration as the person to receive service of process therefor, or by leaving the same at the residence or place of business of such person set forth in the declaration. Any such action brought by or on behalf of the unit owners association shall be pursuant to authority granted by its board of managers.

5311.23 LIABILITY FOR NONCOMPLIANCE WITH CONDOMINIUM INSTRUMENTS; DECLARATORY JUDGMENT; CLASS ACTIONS A declarant, developer, agent, unit owner, or any person entitled to occupy a unit of a condominium property is liable in a civil action for damages caused to any person by his failure to comply with any lawful provision of the condominium instruments. Any interested person may commence an action for a declaratory judgment to determine his legal relations under the condominium instruments or to obtain an injunction against a declarant, developer, agent, unit owner, or person entitled to occupy a unit who refuses to comply, or threatens to refuse to comply, with a provision of the instruments. One or more unit owners may bring a class action on behalf of all unit owners. The lawful provisions of the condominium instruments may, if necessary to carry out their purposes, be enforced against the condominium property or any person who owns or has previously owned any interest in the condominium property.

An action by the unit owners association under this section may be commenced by the association in its own name, or in the name of its board of managers, or in the name of its managing agent.

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