2010 Law in Ohio for planned communities

Started by MckenzieM • 10 replies • 631 views

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MckenzieM (Ohio)
Posts: 13

Posted:

I live in Ohio and our HOA is trying to get going again. It has in the past just taken dues and maintained common areas. They want to get more involved and start changing rules. I came across the law that was passed and no one knew anything about it. The articles of incorporation have been expired for almost 10 years and the by laws that were created in 2008 were never filed with the county recorder. The planned community law that went into affect says both of these need to happen. Also the Assignment of rights was signed over to he HOA as an association, Inc. since the hoa has let their articles of incorporation be canceled with that state does that make the assignment of rights void? I suggested the BOD get a lawyer to make sure they are compliance with the law before they start voting anything. They say after they rewrite everything they will get a lawyer to make sure it’s filed correctly. I want them to do everything right and for no one to find a loophole.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

By-laws don't require to be filed. The Covenants and Restrictions do. That is on a County level. By-laws are internal HOA documents. Sometimes they may accompany the filed CC&R's but not necessarily required.

The Articles of Incorporation I would ask a lawyer familiar with corporate law. It's an area that may be not as cut and dry. Especially on a HOA that's been dormant for so long. There is tax issues to be addressed here in addition. There may not be any "taxes" to be paid but atleast they should have been filed. So maybe a tax expert is in order here too.

Former HOA President

GenoS (Florida)
Posts: 4,276

Posted:

I think waiting until the documents are rewritten is OK. Once you revive your Articles of Incorporation - at some cost, no doubt - you may need to have the owners vote on the new documents as amendments or restatements of the originals. It seems like the BOD's approach is sound. Why hire a lawyer before you have to?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By MelissaP1 on 05/13/2018 7:44 PM

By-laws don't require to be filed.

Melissa,

That statement is inaccurate. Granted, Bylaws typically do not have to be filed. However, I took the OP at face value and chose to check what they were referring to before replying.

Per The Ohio Planned Community Act, specifically Ohio 5312.05 Amendments to declaration or bylaws:

No amendment to the declaration or bylaws is effective until filed in the office of the county recorder

TimB4 (Tennessee)
Posts: 21,062

Posted:

McKenzie,

Keep in mind that regardless if the Association was aware of the act, they must comply with it.
Additionally, in order to amend any document, you must comply with the act or the document itself.

I suspect that the Corporation was administratively discharged by the State due to failure to file annual reports. Depending how far back that was, it may be a simple thing or the need to completely refile for incorporation.

See: Ohio Business Filing Portal

Regarding voiding of rights, that would vary by State and something that needs to be asked of an attorney versed in corporate law.

MckenzieM (Ohio)
Posts: 13

Posted:

Thank you all for your responses. They are talking of going after one house that has been an eye sore and the resident has stated that it’s up to a judge to determine things. My worry is that if it goes to court the HOA could lose on a technicality and hence why I said they start with a lawyer. The by-laws that are not recorded with the county recorder per the act states how voting is done so I am concerned that the current members may actually not be voting in legally and they can not enforce anything as well as when the assignment of rights was signed to transfer it states the hoa name with inc., and says an Ohio non profit and they no longer have that status.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By TimB4 on 05/14/2018 2:39 AM

Posted By MelissaP1 on 05/13/2018 7:44 PM

By-laws don't require to be filed.

Melissa,

That statement is inaccurate.

Yeah it is.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By MckenzieM on 05/14/2018 5:45 AM
Thank you all for your responses. They are talking of going after one house that has been an eye sore and the resident has stated that it’s up to a judge to determine things. My worry is that if it goes to court the HOA could lose on a technicality and hence why I said they start with a lawyer. The by-laws that are not recorded with the county recorder per the act states how voting is done so I am concerned that the current members may actually not be voting in legally and they can not enforce anything as well as when the assignment of rights was signed to transfer it states the hoa name with inc., and says an Ohio non profit and they no longer have that status.

If you're not a corporation in good standing with the state there may be many serious liability issues if your unincorporated association goes to court and loses. You need that corporate shield to be in place before heading down that road.

MckenzieM (Ohio)
Posts: 13

Posted:

They think it just has to do with how they file taxes. Being a newcomer from another state they aren’t taking any suggestions seriously unfortunately.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Time to start sending them articles about the corporate shield

MckenzieM (Ohio)
Posts: 13

Posted:

Yes that is a great idea thank you!! I tried to tell them that a lawyer could argue that the assignment of rights is void because it say to inc a non profit and they no longer hold that status and it would be up to a judge to decide. I will keep sending them info and hope they take care of a few things before they do anything legally.

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