Most community associations utilize independent contractors to service their property. A general example of an independent contractor is an association’s landscaper who uses its own machinery, works on other properties, and is paid in lump sums.However, some associations hire employees who only work for the association, are paid by the hour, and are subject to more direct instruction from the board. As society becomes more litigious, a board’s concerns rightfully grow about litigation resulting from the employer and employee relationship.Even if an association only has a small number of employees, an employee handbook that is kept current with the ever changing employment laws is the first line of defense against employment related complaints. An effective handbook communicates and defines expectations and policies and is better than litigating these issues later.A wide range of topics should be included in an employee handbook. Associations must ensure their policies do not unreasonab...
Protect Your Association Against Expensive Employment Litigation
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 ...
Electronic Communication (Emails) Are Discoverable in Litigation
Our firm philosophy has long been "Communication not Litigation." This philosophy is based on the belief that disputes are best resolved in a voluntary and reasonable manner rather than through the time, expense and aggravation of a lawsuit. Recent developments in the law, however, may require Association boards to pay much more attention to how they "communicate" in the event they are compelled to "litigate."Historically, when a lawsuit is filed, each party is entitled to "discover" evidence held by the other side. This "discovery" process typically involves producing copies of records and other documents possessed by each side to the dispute. In the case of an association, this would include among other things, correspondence to and from the board and its owners as well as between board members, financial records, board and owner meeting minutes, enforcement records, reserve studies and collections information. In today's world, much of this correspondence a...
Successfully resolved a lawsuit against a developer for construction deficiencies in the Association’s clubhouse.
An association discovered various design and construction deficiencies affecting its clubhouse, which led to water infiltration and the formation of mold throughout the building. On the association’s behalf, Kaman & Cusimano commenced a lawsuit against the association’s developer and other subcontractors seeking to recover the cost to repair and replace the defective construction.Kaman & Cusimano successfully resolved the lawsuit with the developer and its subcontractors agreeing to reimburse the association for a portion of the remediation costs.
K&C successfully wins HOA tax appeal
A homeowners association sought to reduce its taxes on a common element parcel. A complaint for valuation of real property was filed with the County’s Board of Revision.Kaman & Cusimano successfully argued in front of the Board of Revision that the association should only be paying a nominal value on the parcel as it was required to be open space by the city’s ordinances. The Board of Revision agreed and reduced the parcel’s value by over $150,000.
K&C obtains settlement where the developer agrees to convey all common element roads and open spaces to the HOA
An association filed a lawsuit against its developer as a result of its failure to transfer the common elements to the association.Kaman & Cusimano successfully negotiated a settlement with the developer whereby he transferred to common element parcels to the association and paid all outstanding taxes on the parcels.
Successfully negotiated a settlement in a foreclosure case with an owner who combined two lots but claimed he owed for only one lot.
An owner within a homeowners association purchased two lots with the original agreement to pay assessments for both lots. For tax purposes, the owner combined both lots but then refused to pay assessments for each lot.Kaman & Cusimano successfully negotiated back payments for both lots and legal fees in the amount of $15,000, with the owners agreeing to the ongoing obligation to pay assessments on the two lots originally designated in the association’s development plat.
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...
Lawsuit Targets Condominium Rules Discriminating Against Children
The U.S. Department of Justice filed a lawsuit against a Minneapolis association, its management company, and its property manager for allegedly adopting condominium rules that illegally discriminate against families with children, in violation of the federal Fair Housing Act. The lawsuit seeks a court order prohibiting future discrimination, monetary damages, and a civil penalty.The Department of Justice claims that the association, management company, and property manager enforced rules prohibiting playing on the grass and riding bicycles against children but not against adults. In addition, the association’s rules allegedly ban children specifically from “playing in hallways, stairwells, driveways, elevators, garages, or any other potentially dangerous area.”To read more about this story, please click on the link below: http://www.startribune.com/local/west/233503901.htmlThe Fair Housing Act makes it illegal to discriminate on the basis of familial status. As a result, to avo...
Ohio Developer Sued For Condominium Fair Housing Violations
An Ohio developer was recently sued by the US Justice Department in Federal Court for violating condominium fair housing requirements in the property's construction. For more details on this story, please click the following link:Developer Sued for Condominium Fair Housing ViolationsKaman & Cusimano routinely handles and advises its community association clients on fair housing related issues. According to Kaman & Cusimano partner Robert Kmiecik:"This lawsuit was appropriately brought against the developer, builder and other parties that actually constructed or designed the condominium. It is likely that the control of the association had not yet passed to the owners. Where such control has passed, the association itself may be named as a “nominal” party as it has control over the common elements where many of the alleged deficiencies are located. As such, the association would need to be involved in any decision or court order requiring changes to be made in such areas,...
Successfully Defended Lawsuit Where Owner Alleged that the Board Caused a Tenant to Terminate a Lease
A unit owner filed a small claims lawsuit against an on-site property manager and front desk employee claiming that they caused her tenant to terminate a lease early causing her monetary damages. The owner also alleged that the association failed to make timely repairs to her unit and wrongfully imposed assessments on her account due to violations of the pet restrictions.Kaman & Cusimano successfully defended the lawsuit by showing that the tenant terminated the lease due to the unit owner’s actions, not the association’s, that the owner’s maintenance requests were timely addressed, and that while the association took enforcement action against the owner, no enforcement assessments were ever placed on her account.
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.
Association Files Lawsuit Against Developer for Construction Defects
A condominium association in central Ohio recently filed a lawsuit against its developer for substantial construction defects. The association, represented by Kaman & Cusimano, filed the lawsuit to address substantial water intrusion issues throughout the condominium property. The Columbus Dispatch recently ran a story on the lawsuit, including comments by partner Kevin M. Fields. Describing the issues facing the condominium:“There have been noted deficiencies at every building out there, with both the roofs and wall systems,” Fields said. “There’s been severe water infiltration through the walls, which has caused underlying damage, and various roof leaks and roofs not properly secured — in essence, sliding off the buildings.”Please click the following link to view the entire story: http://www.dispatch.com/content/stories/business/2014/09/05/owners-of-all-74-condos-in-westerville-complex-sue-builder.htmlIf your community association may b...
Reservation of Rights
Most community association board members are aware that if a person sustains an injury in the association’s common elements, such as a typical “slip and fall,” and makes a claim against the association for the injuries, the association should be covered by insurance. That is, the association’s insurance carrier should adjust the claim and, if necessary, hire a lawyer at the insurance company’s expense to defend the association in any lawsuit arising out of the injuries. The insurance coverage would be provided under the so-called “liability” portion of the association’s insurance, and is typically a matter of routine.In other instances where associations are sued, an insurance company’s response may not be so routine. Increasingly, an insurance carrier will issue a “reservation of rights” letter where it conditionally agrees to provide a defense (hire an attorney) but will not agree at the outset to indemnify or pay for any damages that may be awarded against the association. In other words, it “reserve...
K&C Helps Association Resolve Water Company Billing Issue
Kaman & Cusimano, LLC attorney Joseph DiBaggio recently helped a community association resolve a major billing issue with the water company. The association was being dramatically undercharged the cost of water because of a water company mistake, and Kaman & Cusimano's actions helped to cure the billing issue so that the association would not receive an unexpectedly large invoice. For more information, please read this article by the Cleveland Plain Dealer.
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...