Recent Successes - 2012

Successfully resolved a lawsuit against an adjacent property owner for improperly removing trees and other vegetation from the association’s common elements.

Facts: An association had a large “pond” as part of its common elements, which was surrounded by various vegetation and small willow trees. An adjoining landowner had an easement granted by the original developer to run a drainage pipe through the common elements to the pond to assist in the drainage of his property. The owner unilaterally removed several willow trees and a substantial amount of the vegetation without the association board approval. The owner claimed the willow trees were interfering with his drainage and he was entitled to remove them pursuant to the easement. Kaman & Cusimano initiated a lawsuit against the property owner alleging trespass, violation of the easement and seeking ejectment and compensatory damages for the lost willow trees, as well as attorneys’ fees, asserting that the owner’s actions went substantially beyond the terms of the easement. As a result of the lawsuit, Kaman & Cusimano not only obtained compensation for the lost willow trees and vegetation, but also recovered $5,000.00 for the association attorneys’ fees.


Successfully argued that an owner must cease and desist from leasing his home pursuant to the association’s no lease restriction.

Facts: An owner at an association had been given a one-time hardship exception to lease his unit for a period of twenty-four months. When the hardship exception expired the owner failed to remove his tenant. Kaman & Cusimano successfully had the tenant removed. The owner was permanently prohibited from leasing his unit. The association also received in excess of $1,700.00 for costs and attorneys’ fees.


Successfully argued that a developer was responsible to pay for a special sewer assessment due to the City, not the association.

Facts: An association received tax bills for a special sewer assessment, which the developer was responsible to pay as the assessment was incurred while the developer was still in control of the property. Kaman & Cusimano successfully argued that pursuant to the governing documents and the developer’s agreement, the developer was responsible for the special sewer assessment in an amount over $4,000.00.


Successfully argued that a developer was responsible for costs for incomplete construction of the property

Facts: An association filed a lawsuit against the developer for the incomplete construction of the property, including failing to finish asphalt installation, failing to remove and/or reshape a large mound of dirt, failing to paint gas meters, failing to address draining issues, failing to replace dead trees and landscaping, failing to power wash buildings, failing to complete the visitor parking area and failing to transfer the remaining common element parcel. Kaman & Cusimano successfully argued that pursuant to the governing documents, the developer was responsible for the costs to complete the repair work and the association received a judgment in excess of $120,000.00, including court costs and legal fees.


Successfully argued that an owner was obligated to maintain and clean the inside of her unit and to permit the association to inspect the unit to confirm compliance.

Facts: Residents of an association complained of odors and “liquids” emanating from an owner’s unit. The residents called the local fire department and police who entered the owner’s unit and determined that the garbage and debris in the owner’s unit was a fire hazard. The association filed for an injunction to require the owner to properly clean and maintain her unit and to permit the association to inspect it to confirm her compliance. Kaman & Cusimano successfully argued that the association had the right to enter an owner’s unit for the purpose of maintenance and repair. The owner was required to pay the association’s legal fees and to contact the association within a specified period of time to permit access to the unit for the purpose of inspection to verify clean-up of the unit.


Successfully argued that an association did not cause damage to a unit owner or diminished the value of her property following the discovery of mold within a common element crawlspace beneath the building.

Fact: A unit owner at an association alleged that the association caused her health problems and a diminution in the value of her unit due to the discovery of mold within a common element crawlspace beneath the building. The unit owner further alleged that the association was liable for refusing to refer her claim to its insurance company. Kaman & Cusimano successfully argued that the unit owner failed to establish her claim of health problems due to black mold as she had lived in the unit less than one month before vacating due to the alleged black mold. The unit owner failed to provide adequate medical evidence that her health problems related to the black mold. Kaman & Cusimano also successfully argued that the unit owner did not suffer any diminution in the value of her condominium unit by providing evidence that it later sold for approximately $8,000.00 more than she paid for it. Finally, Kaman & Cusimano successfully defended the right of the association’s board to determine when, if at all, an insurance claim needs to be filed with the association’s carrier.


Successfully argued that a contractor was liable to reimburse an association for funds that were inadvertently sent to it rather than the proper contractor.

Facts: Two associations inadvertently sent payment to a contractor with a similar name to its landscaper. After several attempts to collect this amount back from the wrong contractor, lawsuits were filed. Kaman & Cusimano successfully argued that it was clear that the contractor was the improper party to receive the funds and the Court ordered that the contractor reimburse the association all funds and attorney’s fees.


Successfully obtained reduction in property tax value for common element area parcel within a homeowner association.

Facts: An association was the titled owner of a small parcel containing a sidewalk and tree lawn adjacent to a road providing access to the development. The value assessed by the County Auditor was in excess of $240,000.00, an extremely high value given the nature and use of the property. Kaman & Cusimano, on behalf of the association, filed a Complaint Against Valuation of Real Property seeking a significant reduction in the assessed value. The Board of Revision, following a hearing on the association’s complaint and a review of the evidence presented, agreed that the value was excessive and awarded the association a 99% reduction in value. This reduction entitled the association to a refund of previously paid taxes and translated into an annual tax savings of nearly $4,500.00


Successfully argued that an owner’s failure to properly restrain and leash her dog and allowing it to run loose on the property constituted a nuisance warranting a removal of the dog.

Facts: An association received numerous complaints from concerned residents regarding an owner who repeatedly allowed her dog to escape from her unit and run outside unleashed. The owner permitted these incidents to continue despite numerous written warnings that such conduct would not be tolerated. Kaman & Cusimano, on behalf of the association, sued the owner and argued that the rules and regulations adopted by the board required owners to be responsible for and properly restrain their pets and obtained a court order requiring the owner to remove the dog. Kaman & Cusimano also obtained an Order from the court awarding the association $2,150.00 in attorneys’ fees and costs.


Successfully defended an action filed by a landscaping contractor for an association’s refusal to pay invoices for work that the contractor had never performed.

Facts: An association was sued for allegedly failing to pay for services a landscaping company claimed it had rendered several years prior and for breach of contract. The association denied the services were rendered and countersued the landscaping company for costs it had incurred in hiring another contractor to complete the work the first contractor failed to perform. At trial, Kaman & Cusimano demonstrated that the landscaping company had failed on numerous occasions to complete work in a timely fashion and in a workmanlike manner. Following a review of the company’s financial history, the court determined that the invoices, submitted nearly two years after the work was allegedly done, were unreliable. Kaman & Cusimano successfully proved that none of the work detailed in the belated invoices had been performed. Following a review of the testimony and evidence, the court determined that the association was justified in refusing to pay the invoices and found in favor of the association on the breach of contract claim.


Successfully argued that tenant nuisance activity within an association warranted eviction of tenant.

Facts: An association had endured repeated, blatant violations of its restrictions by an unruly tenant over the course of several years prior to hiring Kaman & Cusimano. Nearly a dozen letters had been sent by the association to the owner of the unit advising him of the excessive noise and vandalism complaints, all of which were ignored. Kaman & Cusimano, on behalf of the association, filed a Complaint for Eviction and argued that the association’s governing documents empowered the board to evict a tenant, over the owner’s objection, and recover attorneys’ fees and costs incurred in prosecuting the case. The court granted the association’s request for eviction and awarded the association $4,362.50 in attorneys’ fees and costs.


Successfully obtained an injunction against owners who continuously stored personal property, garbage and other items in the common elements and garage, which prohibited them from parking their vehicles in the garage.

Facts: A condominium filed a lawsuit against unit owners who were storing personal property on their patio and using their garage for storage and who parked their cars in the driveway, in violation of the association’s restrictions. Kaman and Cusimano successfully obtained a permanent injunction prohibiting owners from storing any items on their patio and in their garage, to the extent it would prohibit vehicles from being parked. In addition, the Court ordered the owners to reimburse the association over $12,000.00 in legal fees. The association was able to file a lien against the unit in this amount and begin foreclosure proceedings.


Successfully defended a lawsuit where a unit owner claimed water damage to the foundation and interior ductwork.

Facts: A condominium was sued by a unit owner who claimed that the association was responsible for $3,000.00 in water damage to the interior ductwork as a result of water allegedly seeping through the owner’s foundation. Kaman & Cusimano successfully argued that the unit owner had failed to provide proof of any actual damages. The Court agreed with Kaman & Cusimano and dismissed the owner’s lawsuit.


Successfully argued that the association did not breach a contract and that a trash removal contractor damaged the association's property, which resulted in the termination of the contract.

Facts: A homeowners association was sued by its trash removal contractor for allegedly breaching its contract and demanded that the association pay for the remaining months of service on the contract in the amount of $4,000.00. The association filed a counterclaim due to the damage to the property caused by the contractor’s trucks leaking on the streets and driveways. Kaman & Cusimano successfully argued that the association provided the contractor with sufficient notice of the property damage and gave the contractor ample opportunity to rectify the problem. In addition, Kaman & Cusimano demonstrated that the association actually submitted payment for all services performed by contractor in the amount of $890.00 and that the contractor refused the payment and submitted invoices for work that was not completed. The Court found that the contractor, not the association, breached the contract and was ordered to accept the previously submitted payment from the association in the amount of $890.00 as payment in full of the contract.


Successfully obtained an order requiring an owner to remove a yard-size skateboard ramp that was installed without permission.

Fact: A homeowners association filed a lawsuit against an owner who installed a skateboard ramp that took up the entire backyard due to the owner not obtaining approval and the noise from the ramp was causing a nuisance on the property. Kaman & Cusimano successfully proved that the owner failed to obtain prior written approval from the board and design review committee. The Court ordered the owner to tear down the ramp and to restore the yard to its original condition. The Court further ordered the owner to reimburse the association over $3,200.00 in legal fees


Successfully argued that an association did not engage in any discriminatory housing practice by not maintaining an owner’s limited common element sidewalk, which was installed as an accommodation.

Facts: Owners at an association alleged that the association wrongfully discriminated against them by failing to shovel a limited common element sidewalk, which the owners requested permission to install due to their disabilities. Kaman & Cusimano successfully argued that the association only permitted the installation of the sidewalk and was under no obligation to maintain it. The Ohio Civil Rights Commission agreed and found that the association did not engage in any discrimination.


Successfully argued in front of various county Boards of Revision that common elements or land owned by the association were either not to be taxed at all or should have a greatly reduced tax value.

Facts: A number of homeowners associations were separately taxed by various counties at inflated values for the common elements or land owned by the association. Kaman & Cusimano successfully argued that these parcels were to be taxed at a nominal value. For eight associations, Kaman & Cusimano was able to receive tax reductions on 18 parcels in the amount over 1.1 million dollars.


Successfully argued that an owner was breeding a dog and creating a nuisance on the condominium property.

Facts: An owner permitted her dog to run on the property without a leash, failed to clean up the pet waste and allowed her dog to breed multiple litters in violation of the association’s restrictions. Kaman & Cusimano successfully obtained a court order requiring the immediate and permanent removal of all the dogs owned by the owner from the condominium property. In addition, the court required the owner to reimburse the association $1,500.00 in legal fees.


Successfully argued that an association has the right to require a uniform appearance and required a unit owner to paint his door.

Facts: An association required an owner to paint or replace his white door with a black door to conform with the association’s architectural requirements and maintain the overall uniform appearance of the property. After several notices, the association authorized our office to file a lawsuit in the Court of Common Pleas as the association’s rules clearly provided that all doors must be black. Kaman & Cusimano was able to obtain a ruling from the Court in favor of the association that required the owner to paint his door black and awarded the association over $4,600.00 in attorneys’ fees


Successfully recovered $15,000.00 from the developer for the association’s reserve account.

Facts: An association authorized our office to file a lawsuit against the developer of a condominium development for failure to maintain the required $15,000.00 cash reserve balance in a special account and to turn over the funds to the association upon relinquishment of control. Kaman & Cusimano, on behalf of the association, was able to obtain the $15,000.00 from the developer and the lawsuit was dismissed.


Successfully argued that a non-owner occupant of a unit was a nuisance and had him permanently removed from the property.

Facts: An association began receiving complaints regarding a non-owner occupant of a condominium unit. This occupant was seen running in the common element hallway with a rifle, pistol, sword, and a machete, and threatened several owners and residents. The association authorized our office to file a lawsuit seeking a Temporary Restraining Order and Preliminary and Permanent Injunction to have the occupant removed from the condominium property. Kaman & Cusimano argued that the occupant’s activities were a nuisance and a danger to all of the other residents. The Court agreed and the association obtained a permanent order prohibiting the occupant from entering onto the condominium property. Kaman & Cusimano was also successful in obtaining a judgment recovering all of the association’s attorney’s fees.


Successfully argued that counterclaims by delinquent unit owners are not permissible.

Facts: The association filed a lien on a delinquent unit and pursued an action in foreclosure. The delinquent unit owner filed a counterclaim alleging the association failed to maintain the lawn and building exteriors resulting in water damage to his unit. Kaman & Cusimano, on behalf of the association, successfully argued that pursuant to the Ohio Revised Code, the owner could not assert a counterclaim in response to an action for nonpayment of assessments. As a result, the owner paid the association the $6,000.00 he owed and his counterclaim was dismissed.


Successfully argued that an association exists and can act pursuant to the terms of the Declaration, Ohio’s Condominium Act and Ohio’s Corporation Act.

Facts: Twenty-three unit owners sued an association claiming it was not a valid association and had no authority to assess units or to enforce restrictions contained in the Declaration and Bylaws. Kaman & Cusimano, on behalf of the association, successfully argued that pursuant to Ohio’s Not for Profit Corporation Act and Ohio’s Condominium Act, the association was validly in existence. As a result, the association had the authority to enforce the restrictions contained in the Declaration and Bylaws and to assess unit owners in order to maintain, administer, and operate the property.


Successfully negotiated a settlement with a developer in favor of an association with structural defects.

Facts: Structural defects caused maintenance problems for an association. Kaman & Cusimano, on behalf of the association, was able to negotiate a cash settlement from the developer. The money will be used to repair the structural defects.


Successfully argued that a dog that was permitted on the property had to be removed as it was a nuisance.

Facts: A unit owner failed to clean up after her dog, properly leash the dog, and control it in the common elements. The association levied enforcement assessments and requested repeatedly that the unit owner leash and clean up after the dog. The attorneys of Kaman & Cusimano were able to negotiate a settlement with the unit owner that resulted in the dog being removed from the unit and the payment of all penalty assessments and attorney fees.


Successfully argued that an association has the right to remove articles left in the common elements.

Facts: A unit owner sued his association alleging theft. He stored a futon in the common element hallway. After repeated warnings, the association removed the futon and placed it in storage. The court agreed with the association that it had the right to remove the futon. There was no “theft.” The association won at trial.


Successfully recovered, through the foreclosure process, funds in excess of $15,000.00 owed to an association by a delinquent owner.

Facts: An owner failed to make required payments for maintenance fees. After the owner’s account became increasingly delinquent, the association filed a lien, and, when it received no response, a foreclosure complaint was filed. A little less than one year after filing the foreclosure complaint, the unit was sold at sheriff’s sale. The proceeds were then distributed to the association, in the form of a check for $15,367.35 representing an amount that covered the entire outstanding balance, including attorney fees, filing fees, and court costs.


 
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