Your client, who lives in a condominium association, brings to you a complaint about the association. It could be as simple as his neighbors are noisy and the board will not do anything about it. It could be that the board complained about her dog. It might be that your client's pick-up truck violates the rules and regulations of the association. Or perhaps your client wishes to install a skylight or patio enclosure and a board member told him that he cannot do that. Or, perhaps the board has passed a special assessment requiring your client to produce $1,000 within one month. What are you to do?
The start of research for a condominium association dispute is with the Ohio Revised Code. The Ohio Condominium Act is found in Chapter 5311. As a matter of law, the rights and duties of a condominium association and their unit owners are defined and regulated by the Ohio Condominium Act and the 1978 amendments. “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 find and regulate the law of condominium development.” (Emphasis in original). Belvedere Condominium Unit Owner's Association v. R.E. Roark Cos., Inc . (1993), 67 Ohio St. 3d 274, 282.
By virtue of the Ohio Condominium Act, your client's condominium association is regulated by its governing documents. They include the Declaration, Bylaws, and Rules and Regulations. The Declaration and Bylaws are recorded with the county recorder's office. The association is subject to these governing documents (R.C. § 5311.19).
A condominium is a common interest community. Upon a purchase of a condominium unit, an owner is a mandatory member of the association (R.C. § 5311.05(B)(7)).
“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 and 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.” Georgetown Arms Condominium Unit Owner's Association v. Super (1986), 33 Ohio App. 3d 132. “Every man may justly consider his home, his castle, himself 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 in cooperation with others. The benefits of condominium living and ownership demand no less. The individual might not be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change may be.” Id .
Knowing that the Ohio Revised Code, the Declaration, the Bylaws, and the Rules and Regulations control the dispute, which embroils your client, the next step in handling this dispute is to determine what these documents say. However, as this is typical with condominium disputes, the language of the governing documents will not be clear. Or perhaps the board or your client has taken an unreasonable approach to the particular problem. The emotional levels of both parties generally increases as the dispute drags on.
As the attorney for the association member, the first attempt at dispute resolution should be a non-judicial method. Some governing documents contain internal resolution mechanisms. There may be mandatory mediation. There may be the possibility of a hearing before the board at an executive session. Either technique would give your client the opportunity to present her case as well as to view the documentation presented against her. Perhaps at this juncture, the resolution would consist of a compromise agreement between the parties.
However, the judicial resolution of a dispute is all too frequent. The association member or the association may obtain injunctive relief or may seek declaratory judgment to clarify the governing documents. (§§5311.19. 5311.20, 5311.23)
If a rule is under question, then the reasonableness test offers some guidelines for courts to use in reviewing condominium restrictions. However, where the restriction is contained in a condominium declaration and is in existence prior to the purchase of the condominium unit, the reasonableness test has less relevance. In such a case “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 Homeowner's Association, Inc. v. Darby (1987), 33 Ohio St. 3d 32, 36.
The rule of reasonableness is used by a court to determine whether or not a rule of the association is to be enforced. The court must determine whether the decision or rule is arbitrary, whether it was applied in an even-handed or discriminatory manner, and whether the decision or rule was made in good faith of the common welfare of the occupants of the condominium. Worthinglen Condominium Owner's Association v. Brown (1989), 57 Ohio App. 3d 73, 76.
Over the years, we, as attorneys, have all witnessed other 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 attorney for the association or attorney for the unit owner had handled it better.
Published July 2002
Cuyahoga County Bar Association
“Law & Fact”