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Korner
Dear
Board
Member:
Thank you to ALL our clients –
the associations, boards, and their
managers – those who hired us way
back in 1980, those who have hired
us over the years, and those who just
chose Kaman & Cusimano as your
community association lawyers. We
are honored that you have continued
to use us or just recently chose us.
We know that you have entrusted
us with your most valuable assets –
your homes and your communities.
We thank the hundreds of
managers and thousands of board
members who last year attended
our educational town halls and
seminars. We also appreciate that
over 2100 of you have taken the
time to watch the “Success Basics”
webinar for new board members
on ATLAS and especially appreciate
the positive feedback and desire
for more webinars. We appreciate
your time and commitment to your
communities. We learn by teaching,
so by joining us you have helped us
become better lawyers.
During tough times, having the
right law firm at your side is especially
important. Kaman & Cusimano looks
forward to continuing to serve as
your community association lawyer
in the coming year. We have set
some ambitious goals for ourselves.
We are committed to a continued
expansion of our web-based ATLAS
program with even more articles,
forms, and blogs. We have started
the process of expanding our Guide
for Board Members of Community
Associations as well as updating and
combining it with our booklet on
Reserves – What Every Board Member
Needs to Know. The only thing
constant in 2011 will be change
and we will use our newsletters
and seminars to keep you and your
board informed and up-to-date on
the never ending legal changes that
affect your associations. We care!!
As always, should you have
questions of any nature, please do
not hesitate to telephone me.
Sincerely yours,
DAVID W. KAMAN
Kaman & Cusimano, LLC
2000 Terminal Tower
50 Public Square
Cleveland, OH 44113
Kaman's
the KAMAN report
An update on current topics and issues af­fect­ing
Ohio condominium and homeowner associations
Kaman &
CUSIMANO, LLC
2011 no. 1
INSIDE:
Proper Steps
To Covenant
Enforcement
Recent Successes
For Our Clients
Kaman's
Korner
The Kaman Report is
published solely for ”Service
Option“ clients of the firm of
Kaman & Cusimano, LLC.
The material presented herein
is intended to provide general
information and is not regarded as rendering specific advice
to your particular community
association. Please be aware
that legal principles as may be
referred to herein are subject
to change from time to time.
PROPER STEPS TO COVENANT
ENFORCEMENT
By Cullen J. Cottle, Esq.
When making the decision to invest in a home
within a deed restricted
community association,
purchasers must understand they are accepting
more than just physical
property. In conjunction
with their purchase, new
owners agree to abide by
the restrictions detailed in
the association’s governing
documents. “Covenants” governing
conduct are found in the Declaration,
Bylaws, and Rules. The vast majority
of owners understand this basic principal, and while reasonable minds may
differ on what restrictions are important or fair, most, for the sake of their
fellow neighbors, abide by the restrictions. Unfortunately, there are a select
few residents in every community who
must from time to time be forced to
comply with an association’s rules.
Just about every association has
had, at one time or another, a covenant
enforcement issue. Common examples
include pets, parking, and leasing
violations as well as unauthorized
structures (such as sheds or fences)
erected by owners without board
consent.
The steps to covenant
enforcement include:
1.Initial Communication
Kaman & Cusimano provides its
clients with sample enforcement
procedures and letters on ATLAS, our
web-based
Association
Total
Legal
Assistance
System.
In any nonemergency
enforcement
matter, the first step is for
the board to communicate
the problem to the owner in
a neighborly fashion. This
“Friendly First Notice” can
be generated by the board
or the association’s property
manager. In most cases,
this single step is sufficient to remedy
the problem. The letter should outline
the nature of the violation and point
to specific provisions in the governing
documents that outlines the alleged
violation. If the owner fails to respond,
a “Mandated First Notice” should
follow that reiterates the nature of the
alleged violation, the board’s attempt
to resolve the dispute in an amicable
fashion, and set a clear deadline for the
owner’s correction of the violation.
2.Enforcement
Assessments
An association may levy a reasonable
monetary enforcement assessment
for violations if the initial letters fail to
gain compliance AND the board has
ample evidence of the violation such as
pictures or signed witness statements.
Such assessments may accrue daily or
per violation depending on the nature
of the violation.
Continued on page 2
PROPER
STEPS TO
COVENANT
ENFORCEMENT
Continued from page 1
A board must carefully review
the association’s enforcement
assessment procedure to make
certain that it provides an owner
with proper due process. Boards,
for example, are required to
provide a “Notice of Intent to
Impose Enforcement Assessment”
prior to levying the assessment on
an owner’s account. This letter,
which follows the first two notices
outlined above, must also include
language entitling an owner to a
hearing and enclose a “Request for
Hearing Form.” If an owner fails to
request a hearing within ten (10)
days, the board may impose the
assessment to the owner’s account.
Sample enforcement notices and
a request for a hearing are also
available on ATLAS. (See “Sample
Forms – Enforcement Procedures”)
3.Self-Help
Many Declarations contain what
is commonly termed a “self-help”
provision where an association
is entitled to correct a violation
so long as reasonable notice is
provided in advance. Examples of
self-help include, but are not limited
to, hiring a contractor to remove
an unapproved item or structure,
towing a vehicle, or making
required repairs to the property. In
most instances, seventy-two (72)
hours notice is sufficient. Kaman
& Cusimano recommends that
whenever self-help is necessary,
a contractor should be hired to
perform the service. In the case of
removing and impounding personal
property, we also recommend that
local law enforcement be put on
notice of the board’s intentions.
The board should also be mindful
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that it is responsible for properly
preserving and storing any such
property and that in most cases this
can be done at the owner’s expense.
If the board wants to tow or remove
a vehicle from the property, separate
State laws must be followed, which
includes having tow away signs at
all entrances to the community, that
comply with State regulations.
4.When Self-Help is
Impractical
Some owners may resist the
association’s efforts to correct
a violation or interfere with
contractors hired to complete the
job. In cases where a confrontation
is likely, the association may have
to seek a court order granting the
association access to the property.
Kaman & Cusimano does not
recommend “forcing” a situation
to the point where tempers may
flare and a dispute may escalate.
The board should be prepared
in advance for such a scenario
and leave the owner’s property
once it becomes clear a conflict is
inevitable. In all such cases, a board
representative or property manager
should contact Kaman & Cusimano
immediately to determine whether
court intervention is necessary.
At the very least, enforcement
correspondence from Kaman &
Cusimano should be directed to
an owner reinforcing the need for
compliance and setting forth a
deadline.
5. Injunctive Relief
When all other efforts have failed,
the board should be prepared to seek
a court order allowing access to the
property to abate the violation. In
Ohio, an injunction can be obtained
to stop certain conduct or compel
another to take action. Lawsuits
are not typically filed without prior
notice to the owner, and by following
the above guidelines an association
can be confident that a court of law
will understand the board took all
reasonable steps short of litigation
to solve the problem.
In general, the board must
authorize Kaman & Cusimano to
file a Complaint for Preliminary and
Permanent Injunction together with
a demand for reimbursement of all
related costs and attorneys’ fees.
To win the lawsuit and recover legal
fees, proper and sufficient evidence
of the violation must be presented
and the right to recover costs must
be set forth in the association’s
governing documents.
If the
situation warrants, the association
may also file a Motion for a
Temporary Restraining Order to
maintain the “status quo.” This may
be appropriate in situations where
an owner attempts or evidences
intent to perform an action in
violation of the Declaration which
would cause significant and
immediate harm to the community.
Whether a Temporary Restraining
Order is appropriate depends on
a number of factors, all of which
must be considered on a case-bycase basis.
From “Friendly First Notices”
to filing suit, it is clear Ohio law
provides associations with a
multitude of options when dealing
with difficult residents in the
community. The preferred approach
in all instances is communication
and problem resolution, not
litigation.
When
litigation
becomes
necessary, however, each board
member must understand that
when the proper steps are
followed it is the violating owner,
not the board, who has fostered
the impasse.
By approaching
enforcement matters in a fair and
consistent manner, the board can
feel assured that this perception
is shared by fellow owners, the
vast majority of whom understand
the importance of honoring the
restrictions contained within an
association’s covenants.
For more specific information,
plan on attending our Spring
seminar entitled “Enforcement of
Rules.”
RECENT SUCCESSES
FOR OUR CLIENTS
For the successful operation of a community
association, we strongly believe and advocate
“communication, not litigation.” Nonetheless,
there have been instances where litigation is required
to solve problems for an association. Recently, the
attorneys of Kaman & Cusimano, LLC have:
F Successfully argued that an owner was required to
obtain approval from the association prior to making
renovations in his unit.
Facts – An association filed a lawsuit against an owner
who was making extensive renovations to his unit
including his bathroom and kitchen without obtaining
approval from the association.
The association’s
restrictions require owners to obtain a permit prior to
making any modifications to the interior of the unit to
ensure that the modifications did not affect the common
elements such as the plumbing. The owner claimed not
to have knowledge of this restriction.
Kaman & Cusimano successfully argued that
the owner was required to obtain approval from the
association for modifications to his unit and that he had
constructive notice of the restrictions as they were filed
with the county. The owner was required by the court to
reimburse the association over $18,500.00 in legal fees.
F Successfully argued that an owner was prohibited
from parking his 3/4 ton pickup truck on the
property.
Facts – An owner filed a lawsuit against an association
asking the court to permit him to park his 3/4 ton pickup
truck in the common elements and limited common
elements, which was prohibited by the association’s
restrictions. The association filed a counterclaim asking
the court to require the owners to remove the truck from
the property or to park it in their garage.
Kaman & Cusimano successfully argued that the
association’s rule that the truck must be parked in the
garage is reasonable. The court agreed and ordered
the owners to park the truck in the garage or remove it
from the property. Kaman & Cusimano also obtained
$4,500.00 in attorneys’ fees on behalf of the association.
F Successfully argued in the 9th District Court of
Appeals that Ohio Revised Code Section 5311.18
permits foreclosure and prohibits owner’s counterclaim
for failure to maintain common elements.
Facts – An owner was delinquent in paying common
assessments. Kaman & Cusimano filed a lien against
the unit. As the owner’s delinquent account accrued,
Kaman & Cusimano filed a Complaint for Foreclosure
requesting that the unit be sold at sheriff’s sale. The owner
filed a counterclaim against the association alleging the
association failed to maintain the common elements.
Kaman & Cusimano successfully argued in the Court
of Common Pleas and again in the Court of Appeals that
pursuant to Ohio Revised Code Section 5311.18, the
owner’s counterclaim was impermissible under the statute
and should be dismissed. The owner’s obligation to pay
assessments is mandatory as a member of the association.
Payment of assessments is an obligation separate and
distinct from the association’s duty to maintain the common
elements. Kaman & Cusimano successfully argued the
association could proceed with its foreclosure to recover
the unpaid assessments regardless of the owner’s claims.
The Court of Appeals ordered the Court of Common Pleas
to proceed with its order for sale of the unit.
F Successfully recovered funds from a siding contractor
that improperly installed the siding causing premature
deterioration.
Facts – An association noticed cracking and breaking of
siding that was recently installed within the association.
The association obtained an engineer’s report which
identified several installation deficiencies. Therefore, the
association filed a lawsuit against the contractor for breach
of contract and negligence.
Kaman & Cusimano successfully settled the matter
with the contractor agreeing to pay $11,500.00 to the
association for damages.
F Successfully defended a claim of discrimination where
an owner alleged that the association refused to provide
her with services due to her race.
Facts – An owner filed a civil rights complaint against the
association claiming discrimination based on race and
claiming that the association refused to provide her with
snowplow services and perform maintenance to her unit.
Kaman & Cusimano successfully argued that the
association reviews maintenance requests on a caseby-case basis and determines what items are in need of
immediate repair and are within the association’s budget
and that the owner’s vehicle being parked in her driveway
prohibited the snowplow contractor from removing the
snow in her driveway.
F Successfully defended a claim of discrimination where
an employee claimed that he was demoted due to
his race.
Facts – An owner within an association filed a civil rights
complaint against the association claiming that he was
demoted based on race.
Kaman & Cusimano successfully argued that the
employee’s work evaluations showed that he was
performing his job unsatisfactorily and failed to improve
after his work evaluation and several warnings.
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