As spring approaches many homeowners may decide to take on a home improvement project; however, some of these projects may conflict with the deed restrictions and rules in your community association. Many boards are unsure what to do when an owner installs an item or structure that is prohibited by the association's governing documents. Often an owner will not remove a prohibited structure in response to the imposition of an enforcement assessment against their account. When faced with this problem, the board may consider the use of summary abatement to remove the structure or item as an alternative to a lawsuit. The board should first check its governing documents and/or contact our office to confirm the association has the authority to remove the structure or item from the property without a court order. Generally, the association may remove structures or items placed in the common elements without a court order based on the association's maintenance and repair responsibil...
Restricting Gun Possession
Perhaps no political issue in the past 20 years has captivated the public's attention quite like the issue of the Second Amendment to the Constitution and the idea of firearm possession. Questions like, "Who can own a gun?" "Who should own a gun?" and "What restrictions can we place on owning a gun?" have permeated public discussion throughout every election cycle in recent memory. Because board members have extensive decision making power over their associations, it may seem logical that board members want to regulate (or not) firearm possession within their communities. Before attempting to enact any rules relating to firearm possession, board members should be aware that the Supreme Court of the United States has had its say when it comes to regulating firearm possession in a person's private home. The Court has made it clear that any restriction against a private person keeping firearms in his/her home will be invalida...
Ohio Flag Bill Now Law
In a flurry of activity at the end of the 2-year cycle for the 131st Ohio General Assembly, Governor Kasich signed 17 bills into law, including HB 18, “The Flag Bill.” After passing the House unanimously in late 2015, the bill was amended in the Senate committee, but not taken to the full Senate for a vote until December 6, 2016. With a 31-0 vote, it was sent back to the House for a final approval of the amended version, and then presented to the Governor for signature.The purpose of the bill is to extend the protections now afforded to the exterior display of the U.S. Flag to now also include: the State of Ohio flag, the POW/MIA flag, window displays of blue and gold star banners, and other similarly designated service flags. Like the United States flag, these flags will be permitted to be displayed within Limited Common Elements or windows, subject to reasonable rules regarding size and location. As it takes 90 days, the law will be effective March 19, 2017, and apply to mobile home parks and apartm...
Don't Rain on Owners' Patriotic Parade
Most Community Association governing documents prohibit exterior modifications, including the placement of banners, flags, and signs. However, as pointed out in Chapter 1 of Kaman & Cusimano LLC's booklet, "A Guide for Board Members," there is a hierarchy of laws and in several instances there are federal and state laws that supersede and overrule Community Association declarations.One such instance is the placement of the American flag. Ohio Revised Code Section 5311.191 states that:"No declaration, bylaw, rule, regulation, or agreement of a condominium property or construction of any of these items by the board of managers of its unit owners association shall prohibit the placement of a flagpole that is to be used for the purpose of displaying, or shall prohibit the display of, the flag of the United States on or within the limited common areas and facilities of a unit owner or on the immediately adjacent exterior of the building in which the unit of a unit owner is located."Comm...
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 ...
Association Gets Creative with Dogs
15 Jan 2010
15 Jan 2010
Kaman & Cusimano receives many of its Service Option Clients' newsletters in the mail. One in particular recently struck our eye. As you can see, Town Square Condominium has developed a unique way to clean up after dogs: Too bad every association does not have dogs that are this well trained!If your Association is a Kaman & Cusimano Service Option Client, you can now see many great sample newsletters of other Ohio associations in the "Client Articles" section of our website: www.ohiocondolaw.com
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 th...
Successfully evicted a tenant creating a nuisance on the property
A tenant within a condominium association was engaging in nuisance activities, including shooting a gun outside while intoxicated. The association provided the owner with notice to remove the tenant from the property but the owner failed to do so and an eviction action was filed.At trial, Kaman & Cusimano successfully argued that the tenant should be removed from the property due to the severity of his actions. The unit owner was assessed all the legal fees and court costs of the eviction action.
K&C obtained order that owner must remove pet
Kaman & Cusimano successfully argued that an owner must remove her pit bulls as a result of violations of the association’s rules mandating immediate clean up after pets.An owner at an association had two pit bulls and failed to immediately clean up after the dogs. In addition, one of the pit bulls attacked another dog on the property. Kaman & Cusimano initiated litigation and was successful in having the dogs permanently removed from the property. The owner is also permanently prohibited from possessing a pit bull on the association property, and must pay more than $3,900.00 for the association’s costs and attorneys’ fees.
Successfully resolved a lawsuit against an adjacent property owner for improperly removing trees and other vegetation from the association’s common elements.
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...
Only You Can Prevent Potting Soil Fires
Potted plants are a great way to improve outdoor space and add color to a balcony or patio. However, many people do not realize the latent fire hazard that potted plants pose. In fact, we learned of this issue last summer when a fire that started in a potted plant on a second floor wood balcony.Contrary to popular belief, potting soil does not really contain much actual soil. The potting mixture available in most stores is a blend of aged, composted wood and bark, mixed with elements such as peat moss, Styrofoam, and other chemicals. Further, many potting mixtures have fertilizers included as well. The purpose of these potting mixtures is to aerate and retain water inside the pot, not to resemble the dirt that ground plants live in. While the potting mix is successful in its goal of promoting plant life inside the pot, the mixture of chemicals and wood products tends to become very flammable as the mixture dries out over time.Many potted plant fires are started accidentally...
There’s No Witness Protection Program in Community Associations
14 Oct 2013
14 Oct 2013
Before seeking to enforce rule violations, the board must insist that complaints be submitted in writing and contain the date, signature, address, and phone number of the person filing the complaint. Implementing this type of policy for complaints serves several purposes. First, it will eliminate petty issues because the person making the complaint will not want to sign their name and identify themselves every time they see their neighbors commit a minor rule infraction. More importantly, by requiring written complaints, the board will also minimize the chance of being wrongfully accused of overly aggressive enforcement, harassment, or selective or discriminatory enforcement. Finally, if the violation cannot be resolved through neighborly discussion, the accused ultimately has a right to know the accuser in the event of an enforcement assessment hearing. Therefore, the board should make a written complaint form available as part of its handbook, welcome packet, and on the associa...
Condominium Association Pays $150,000 to Settle Fair Housing Claim
A Florida condominium association and its former management company agreed to pay $150,000 to settle a fair housing claim alleging that they enforced occupancy limits that discriminated against families with children. In the case, a family of two parents and six children moved into a 4 bedroom unit. The association, however, had a rule limiting occupancy of a 4 bedroom unit to just 6 people. The association notified the family of the “problem” and threatened them with eviction for violation of the occupancy restrictions, causing the family to move out. Following a HUD investigation, the Justice Department sued the association and its management company, claiming that they engaged in a pattern or practice of violating fair housing law by adopting and enforcing overly restrictive occupancy standards.The association and management company agreed to pay $45,000 to the family that filed the complaint, $85,000 into a fund to compensate other alleged victims, and $20,000 in civil penalties. A...
Condominium Association Handicapped Parking Lawsuit
In a recent Illinois court case, a renter sued a community association claiming that the unavailability of handicap-accessible parking violated the Fair Housing Act (“FHA”). The property consisted of a 40-story building with 342 parking spaces, seven of which were handicap accessible. However, the association sold the handicapped-accessible parking spaces to non-disabled persons and the renter claimed these sales violated the FHA.The court found that, although the sale of the parking spaces to non-disabled residents was not an FHA violation, the failure to make public areas of the building accessible by reserving at least some accessible spaces for individuals with disabilities was a violation.To read the court’s decision, click here:http://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2011cv02421/254455/176Parking is an issue that virtually every board must confront, whether in creating or enforcing rules. As always, if your association encounters issues related...
Successfully Obtained Judgment against Owner for Failing to make Required Lot Maintenance and Repairs
A homeowners association filed a lawsuit against an owner for failing to maintain and repair his property, including his siding and landscaping and removing unapproved items. Kaman & Cusimano successfully obtained judgment requiring the owner to make all necessary maintenance and repairs within 90 days and to reimburse the Association $1900 for legal fees.
Increased Scrutiny on Community Associations by Fair Housing Advocates
Recently, several Kaman & Cusimano attorneys attended the 6th Annual Fair Housing Forum where several speakers presented material on recent developments in Fair Housing law. New scrutiny of condominium and homeowners association governing documents was one of the many issues discussed at this seminar.Specifically, the General Counsel for the Fair Housing Center of Toledo reported that, although community associations have not been specifically targeted in the past, Fair Housing advocacy groups have recently reviewed governing documents of almost 600 community associations searching for “unacceptable” and “cautionary” language. Unacceptable language is that language that violates the Fair Housing Law on its face, such as “no children” in a non- 55 and older community. Cautionary language is language that may indicate an unlawful preference or limitation that could lead to discrimination, such as prohibiting “toys” or “strollers.” Cautionary language may lead to further investigation or testing,...
K&C Assists Association with Tree and Tresspassing Dispute
Kaman & Cusimano attorney Erika Finley recently assisted a gated community client in resolving a dispute with an owner regarding an old cucumber tree that is the subject of sightseeing by the surrounding community. To learn more, please read this story from the Canton Repository:http://www.cantonrep.com/article/20160108/NEWS/160109487
Summer Time Rules!
It is that time of year again in Ohio! The warm weather entices everyone to go outside and enjoy all of summer’s possibilities. With the increased activity on your community association’s property, boards should review their rule booklets to help decrease issues from arising during the summer months.Rules – Don’t Discriminate! If your community association is not designated as housing for older persons, it may not discriminate against children. As a result, associations may not have adult only swim times as this would violate the Federal Fair Housing Amendments Act of 1988 as it does not allow equal access to the pool. In addition, association rules should not state “Children are not allowed to ride their bikes in the common elements,” but rather the rule should be non-discriminant by stating “Riding bikes in the common elements is prohibited.”Grilling At your Association – Don’t Violate State Laws!Ohio Fire Code regulations govern the operation of open-flame cooking devices. ...
Hoarding and Hoarders Must Be Handled With Care
The problems posed by community association residents who hoard are complex and difficult to manage. Boards have to balance the legitimate concerns of residents affected by hoarding, while respecting the rights of residents who hoard, or who are suspected of hoarding.The signs and symptoms of hoarding include foul odors, insects or rodent infestation, dirty windows, dirty or continually closed curtains and blinds, window obstruction from large pieces of furniture or stacks of boxes blocking window interior views. When uncontrolled clutter spills over and compromises the rights and interests of others there is a threat to the health and safety of the community which the board is required to protect and preserve.All associations have governing documents that prohibit residents from creating safety hazards and nuisances. Most documents require residents to maintain their homes in safe and sanitary conditions. As a result, boards can make rules that discourage residents from creating and m...