Uncooperative Owner Forced to Comply with Association's Remodeling Rules and Pay Attorney's Fees
On September 17th, in the case of Acacia on the Green v. Gottlieb, (No. 92145), the Ohio 8th District Court of Appeals affirmed the trial court’s ruling and held that a Unit Owner must receive the Association’s permission prior to engaging in a construction project, and failure to do so requires the Unit Owner to pay all of the Association’s legal fees (which in this case amounted to $18,442.55). Arguing on behalf of the Association was Kaman & Cusimano, LLC Attorney Cullen (CJ) Cottle.
The Court cited Ohio Revised Code Section 5311.081(B)(5) which states: The Board of Directors may “adopt rules that regulate the use or occupancy of units, the maintenance, repair, replacement, modification, and appearance of units, common elements, and limited common elements when the actions regulated by those rules affect common elements or other units.”
In this case, the Defendant had extensive electrical, plumbing, cabinetry and flooring work done to his unit without the prior authorization of the Board. The Acacia on the Green Declaration required prior written approval prior to making any structural improvements to a Unit, and the Board passed a rule requiring each Owner to obtain a permit from the Board prior to construction. The Association repeatedly tried to be accommodating to the Unit Owner by sending multiple notices and attempting to resolve the matter with him without litigation. However, the Association was left with no other choice but to litigate after the Unit Owner started another new project after being notified of his failure to obtain a permit from an earlier remodeling project. In ruling for the Association, the Court of Appeals found that the statute applied to the Unit Owner and the Declaration and rule provisions were reasonable.
Additionally, the Court found that the Ohio law required the Defendant to pay all of the Association’s attorney’s fees. According to Revised Code Section 5311.19(A): “All unit owners, their tenants, all persons lawfully in possession and control of any part of a condominium property, and the unit owners association of a condominium property shall comply with all covenants, conditions, and restrictions set forth in a deed to which they are subject or in the declaration, the bylaws, or the rules of the unit owners association, as lawfully amended. Violations of those covenants, conditions, or restrictions shall be grounds for the unit owners association or any unit owner to commence a civil action for damages, injunctive relief, or both, and an award of court costs and reasonable attorney’s fees in both types of action.”
Based on this provision, the Appeals Court held that the defendant is required to pay all of the Association’s attorney’s fees relating to the enforcement of the Declaration and Rules, which total $18,442.55!
Ultimately, this case is another victory for Ohio’s condominium associations. Unit Owners must follow the condominium statute in the Ohio Revised Code, AND the provisions of each association’s Declaration; and more importantly, failure to comply will require the violating Unit Owner to pay all of the Association’s legal fees – even to the tune of $18,000!
To read the entire opinion, click here: http://www.sconet.state.oh.us/rod/docs/pdf/8/2009/2009-ohio-4878.pdf