DUE PROCESS RIGHTS AS AN OWNER

In Ohio we have statutes that say that the board must inform the owner of an alleged violation. The owner can request a hearing. After the hearing the board has 30 days to serve a written decision to the owner. I went through the steps as an owner and received no decision. Four months later I get a Notice to Cure from the association attorney saying that I must pay for the cost of the letter and any more legal bills for enforcement. The problem is I received no notice and opportunity to comply. I am suing the lawyer, the manager, and possibly the board. Our declaration as amended says the cost of enforcement is the responsibility of the owner but I had no decision to comply with and the 30 day period having passed to me means the board waived its right to enforce. Any comments?

How is it you received this letter, but not the one announcing the decision? Can you prove you didnt? Saying you didn't receive a notice is usually the first thing homeowners say when they get a notice. You knew the decision was due within 30 days - and you did nothing for the next 60-90??? Why not call the property manager to follow up?

I don't know if the board lost its chance to enforce the violation - that may be up to a judge, and since you said that's what you plan to do, good luck to you. Yes, thermostats to exposing the delay, but You'll have to explain why no follow up knowing this website as hanging over your head.

Whew, that tablet messed up big time - I meant to say:

I don't know if the board lost its chance to enforce the violation - that may be up to a judge and since you said you're planning to sue, good luck to you. Yes, they'll have to explain the delay - but you'll have to explain why you didn't follow up either, although this was hanging over your head.

Do you care to elaborate on the alleged violation and how the hearing went? Be honest with yourself about the alleged violation as well. If you are likely in violation, then regardless of misstep in processes, it would be a tough fight to win if you are indeed in violation. Depending on context my comments may be tailored differently.

Based on what you posted here and your next step being to sue everyone involved . . . I'm assuming that there is already at least a bit of hostility, disagreement, and aggression on (perhaps) both sides of this situation. If the situation remains combative, it's likely to not work out well for either party. But if cooler heads prevail then it may work out better or even in your favor as you likely hope.

I might normally suggest that you present your case back to all the stakeholders in calm (without emotion), professional, non-accusatory, fact-based correspondence and wait to see how they respond. Ask that they pause the clock on whatever they have in motion so that the situation can be worked out to the greatest benefit of the HOA and you. Provocation and threatening to sue will only serve to further fuel emotions and result in neither side wanting to work together on whatever compromise could be made. If they respond stating that they issued you a decision on a certain date, then request they provide you with that decision as well as whatever proof they have that it was sent.

At an open meeting the board admitted not sending the notice. I have myself and witnesses.

I have no duty to respond to a non decision. Our meeting was June 4th. I presented my case and proposed 3 resolutions. The board said they would contact me. They failed to do it. My thought was that they dropped it as the evidence was CLEARLY against their decision. Had a decision been made, I would of course comply and take legal action against the decision but not enforcement.

There is only one case presently. The original violation claim was never presented as a decision. I asked and received a hearing claiming that the violation was invalid on several legal grounds. The case a present is a case for violation of due process rights as I am being charged legal fees for refusing to comply with no decision given. I shall give a synopsis of the original alleged violation. I moved into the condo in the summer of 1999. My realtor was the daughter of the association's manager. I asked in no uncertain terms that was it allowable to teach piano in my unit. The manager and daughter said it was allowable and we have a teacher across the street. I had taught in my home from 1976 to 1999 before moving to the condo unit. The realtor said that only businesses that cause a nuisance are prohibited. The published ruled covering businesses say that written permission should be given to anyone in a home based business. For 5 years I taught the Board President and her co owner was also on the board. I have the check records of her payments. I have a witness who was the teacher across the street. I have witnesses and internet ads that show a lawyer in the association having his law office in his unit. I presented my legal claims of laches, acquiesence, selective enforcement, and misrepresentation in buying the unit. These are all provable. However, my case with the board received no decision. My thought was it was dropped. Meanwhile, I did take provable action by setting up a studio in a commercial building (given to me) and taught students at home in case I was stopped. I studied the law and realized that I had no obligation to stop teaching until I went through the due process requirement as provide in Ohio law. Everyone on this thread does not understand there is one case and possibly one potential case. The manager and lawyer are liable for professional negligence. The manager is guilty of a 5th degree felony in Ohio for fraud with willful intent against a an elder (in Ohio it is someone over 60). The Ohio courts have made it crystal clear that there are exceptions to declaration enforcements if deemed unreasonable. The three prongs are is it (1) arbitrary (2) is it discriminatory, and (3) is it reasonable. There is absolutely no benefit to the association whether I teach or not as for 22 years there have been NO COMPLAINTS. I understand the law and I understand how to comply when given an opportunity. The problem with most normal people is that they speculate on legal action and in this case I have an attorney being sued as he doesn't understand the basis of violation enforcement. Trust in expertise is a TOTAL fallacy. I know it and they shall learn it as others have in cases I have been involved with helping others.

There is no threat. The lawsuit as announced is being prepared. There is no such thing as tabling a decision when a hearing is requested and held. There is 30 days to give notice and then give a time table for compliance. It is very simple if the people know what their job entails. The legal right to a decision is waived after 30 days and they must start de novo. The lawsuit is against the lawyer and manager for negligence, fraud, and infliction of emotional distress for violating due process laws in Ohio under condominium law. The violation claim is a non issue. I have no decision and I have provable action taken to comply if I was ordered to comply. Then I could seek a declaratory judgment in court to have my rights declared under Ohio law.

If you really knew how the legal system works, you would do as I am doing. Right now it is like trusting a hospital and/or a doctor because you believe they have knowledge and skill to do the right thing. I have seen way too much. You probably would/should consult an attorney but not me.

I am prepared for a simple case for the charges for enforcement with no notice. It is a clear cut case and I have all the evidence needed. It will move to summary judgment in my favor. I shall then sue the management company and law firm for "respondeat superior" claims. I shall be filing a formal grievance to the Ohio Supreme Court and Ohio Bar Association for violations of the code of professional responsibilty for the lawyer and two major partners. I shall seek suspension of their licenses in an open hearing if I can get it. This case is not complicated and has NOTHING to do with any alleged violation.

I offer this very respectfully, because Ohio's law & jurisprudence perhaps may ultimately support your plan. And a pair of Va plaintiff lawyers did whip & bankrupt their HOA over electoral signage.

Over a period of a decade ending in 2017 a LAWYER & his wife in my jurisdiction fought flagrantly unlawful voodoo levies being demanded from a nearby cross-covenanted community. That nearby community contained an appeal court judge, lawyers , powerful folks. Think Nosferatu, flat out unsupportable.

The defendants retained professional litigators. But the Nosferatu-type group won in 3 out of 5 civil law decisions, fortunately NOT the final one at Ontario's Court of Appeal where fought between 2 of the top civil litigation firms in the country.

The Court of Appeal in 2017 ripped apart the reasoning - and hopefully the career - of the Divisional Court lower appeal jurist. That lower appeal court judge's bizarre & vicious mis-reasoning had contradicted 60 years of Canadian jurisprudence and a further 55 years of Brit jurisprudence both at the peak of the judicial hierarchies. That's with an absolutely impeccable defence protecting the client lawyer . . .

But good luck to you sir.

I already responded all the details. You are entitled to feelings and speculation but you are fundamentally in error. I have elaborated on the details. I have no emotional drama. I have acted in good faith and was prepared for compliance. This is a strictly legal matter. The violation is described in detail above. It is whether or not I am permitted to teach piano in my unit. There is nothing to fix. I had the assurance in 1999 that it was OK. I have taught here for 22 years without complaint. THERE IS PRESENTLY NO CASE FOR A VIOLATION. NO DECISION WAS PRESENTED. The present case is against the manager and lawyer for fraud by billing me for legal services I did not require or am liable for legally. You being a Board President are an example of not understanding basic HOA procedure. This is the problem: ignorance of the law and relying others that are incompetent. Don't read into me as having any emotional reaction. The president and at large board member support me. Don't guess when you can actual get information.

JosephL6, can you please quote, word-for-word, the covenant the board is saying you are violating?

Is the Board saying the piano playing is a nuisance?

Or is the board saying that teaching people piano in your condo unit is a nuisance?

Abuse of process and malicious prosecution can only occur if your adversaries took some action against you in court. Did the HOA file a lawsuit against you?

If you file suit pro se, then I think you want to keep this all very basic and focused on (1) how you are not violating any covenant, and (2) the Board is violating its own rules and regulations regarding the timeframe for a decision and giving you a reasonable amount of time to cure a violation.

I think you should keep in mind that one never knows which way a trial court judge will rule. Trial court judges do not get expert on covenants, COA law, and so on just because you are a party in a lawsuit now under the judge's oversight. I think what's on most trial court judges' minds is the incredible cost of court resources to the taxpayer. Judges really want people to try to keep these disputes out of court. I recommend you try mediation before filing in court.

No. The causes of action are negligence, fraud, malicious prosecution which resulted in extreme emotional distress. The emotional distress infliction is the damage. It is a 5th degree felony to deny property (fines) by deception, threats, and intimidation. I am filing a criminal action against the manager who sends the fraudulent legal bills. I don't have any idea how you thought that changed.

THERE HAS NEVER BEEN A COMPLAINT FOR 22 YEARS OR EVEN NOW BASED UPON BENEFIT TO THE HOA. It is some unknown person claiming I am violating a provision which says no business may operate within a unit. The condo rules say the board can give permission. In 1999 it was found to be fine. Now it is not for some unknown reason. The board has a solution in search of a problem. Violation of a covenant HAS NOTHING TO DO WITH MY CASE. My case involves attacking me outside of the law in Ohio requiring basic due process. I.e. notice, a hearing, and a notice of a decision and opportunity to comply. NONE OF IT HAPPENED. The only thing that happened was threats and legal bills that cannot be issued except for enforcement. There is nothing to enforce and no evidence of non compliance as there can't be. You are conflating the current case with the orignal notice and possible case regarding a covenant. There is NO CASE REGARDING A VIOLATION. Ohio case law and doctrines of equity all support my case. With a jury I would have no problem getting my right to teach there should I need to have a court review the decision.

The HOA is who you have the "fight" with. I am not sure what the relationship of the attorney and PM has with you. They are hired by the HOA. They do what the HOA tells them to do. They have the contract with the attorney and/or the PM. So if the lawyer/PM were acting outside their authority then it was on the HOA to have corrected the issue with the lawyer/PM. It is NOT yours. That isn't how that works. So who is enforcing the violation against you? Was it a court of law or was it the HOA?

The having a business in a unit/house has long been a "rule" of most HOA's. Ours has it as well. However, the INTENT of that rule means that one can't put a "shingle up". That means if you were a Dentist, you could NOT put a sign outside your unit/door that says "DENTIST". Could not "save" parking spaces for your business nor attract multiple cars. It is to make sure your not purchasing the property to use as a business office.

Now, that typically doesn't include home businesses like "Tupperware" or "AVON" sales. Those don't generate traffic, you don't put a sign out, and it's not usually a tax exemption for office space. It is more of a private type of business. Even that lawyer you mentioned can use their home office all day long as long as not using it as a base of their business. They can use it like anyone's home office is used.

When it comes to providing piano lessons or even singing lessons in a home, that could be considered a "nuisance" type business. (Full disclosure I took piano lessons). It may that you have not had any neighbors who had any issues with it until now. Which now they are complaining the HOA has no choice but to respond by enforcing the rule. At this point when they tried it sounds like a lawsuit by you was threatened in result. As it doesn't sound like you had no intentions to stop what you were doing.

My house (without an HOA) I used to park my truck at the side of my house. It was nice truck but I had no room for it in the garage. Spent years parking vehicles there. My neighbors around me parked in their yards as well. One day I come home to find a violation notice from the city. It appears it is a code violation as you MUST park on concrete/asphalt. No Grass! Mind you never seen a code enforcer in my neighborhood. Plus we had a city representative up the street. No one else got this notice. It turns out that my neighbor was selling his house. The Realtor company is an "uppity" stuck up group. They called in my truck as a violation to the city so to make his house more "marketable". My truck messed up their pictures and showings.

I suspect your "complainer" is someone who is in the market to maybe sell their house or someone who works 3rd shift. For whatever reason, they now don't like it and want it to stop. Your HOA now has no choice but to follow it's rules as they are something they can't ignore whether or not you got your "due process" to correct. Your still were going to have to correct. The HOA just had to figure out how legally they had to do it.

I have done a demand letter right away to the lawyer. I have presented a demand letter and oral presentation in the record to the manager about mail fraud. I shall address them again on Thursday. I always respond timely and set up my cases. They will get the complaint after I file it. There will not be any heads up for them. I sent them in November a request under Civ.R. 34(D) in Ohio for pre lawsuit discovery. They did not comply. I can get a court order for compliance but I am just going to file the lawsuit. I had forgot it is obviously a breach of contract case as our declaration and Ohio condo law is our contract. They have violated it clearly.

Do you mind sharing what your proposed resolutions were. What has transpired since the June 4th meeting besides no communication from the Board? Are you receiving threatening letters from their attorney and being charged for them? I am not clear what your end goal is. Do you wish to punish the key players for incompetence, ignorance of the law, or malicious and fraudulent behavior. Will you please elaborate here? Or do you wish to return to the status quo of teaching piano out of your condo and not paying the HOA's legal bills. It seems your plans are a long and expensive way to get there.

A few years ago, I filed a formal complaint to the Iowa Supreme against an Iowa attorney. I got nowhere. There was an investigation because they are required to do that for every complaint received. At the time, I didn't understand the game that lawyers play. First they write a letter that includes language to scare the recipient. If that doesn't work, they take what should be a small claims case and turn it into a district court case by seeking thousands more in damages so it will either scare the recipient or keep the case going to make more money from their clients. They also try as many tactics as they can to rack up legal bills for the opposing party and their clients. In my opinion, it's unethical behavior but the Iowa Supreme Court doesn't see it that way. It may be different in Ohio but that is what I experienced in Iowa.

I think you have to ask yourself some hard questions. Do you want your life to be consumed by this or are there other solutions?

Your reply and questions are very thoughtful. I had no communication from the board from June 4th until I received the letter from their attorney which fit the description and pattern you described. If I were charged with a crime, received notice of the trial date, failed to show, and received an arrest warrant after the trial without me had convicted me, it would be an anology to what is going on. Basic elements of due process require notice and opportunity followed by a decision. The lawyer either being ignorant or incompetent failed to be sure that state law requirements were fulfilled before taking any action. He should have advised the board that they waived their claim on June 4th. Instead, he attacked me fraudulently and acted outside the law. His disciplinary code requires him to act within the bounds of the law. There is NO QUESTION he violated that and abused the process knowing that his action would cause harm and harrass me. There is NO DEFENSE for the lawless actions. There is no defense for mistake. He has and shall be given one more opportunity to correct his error. If he doesn't, then willfulness and intent have been established. Too many people are looking at his actions as a function of his employment with the board. The board and management will be given the same opportunity to exhibit good faith or malicious and fraudulent behavior. My case could be a number of cases but I am leaning toward suing all board members, the manager, and the lawyer to tie it all together. Anyone of them could come forth and denounce the action and correct it. In Ohio's criminal code, the equivalent of mail fraud, is covered under theft statutes. That is, trying to deprive a person of property through fraud, deception, threat, and/or intimidation. They will all be charged by me in a criminal complaint after having received my claim against them, they fail to act in accordance with the law. In Ohio for a person to be attacked fraudulently through the mail or otherwise is a 5th degree felony when the person is over 60 years old as I am in a protected class. I have not and shall not refuse to comply with a lawful decision. So making a big enforcement case is not an issue until there is something legally binding to enforce. If other state actors refuse to investigate the evidence and file charges, they can be subject to misprision statutes which involve concealment of a crime. There are nuclear options such as RICO which can involve the entire of actors that perpetuate fraud and injury to me. They have no idea of what I am capable of doing. I won't be consumed as once the ball is rolling, I just follow the steps. Right now I can make a case of intentional infliction of emotional distress is happening as I indicate in my last letter to all parties to correct the mistake and legal errors.

Posting for the archives:

Except that what an owner is owed does not derive from the Constitution but instead derives from the law of contracts.

Recently I saw a HOA attorney argue successfully that, while the Board had not followed the requirements of its own, long established written procedures for notice et cetera of a violation, the Board had made no materialerrors. The HOA attorney argued that the HOA had in fact met the material requirements of the contract.

"Material" is a big subject in contract law. Case law was quoted at length.

The trial court judge bought it.

The worst part is that no less than the federal Department of Housing and Urban Development had approved the written procedures some years before, as part of a HUD Conciliation Agreement. The procedures had HUD's approval explicitly noted in them and were a part of the HOA's official, properly noticed Rules and Regulations. With this one decision, the trial court judge threw out I estimate around $150,000 of attorney labor. The HOA is now free to ignore, for one, the HUD-approved HOA requirement to offer the accused the videotape the HOA has of the accused allegedly violating covenants. Videotape had been available in this particular case. But it mysteriously was not preserved. Which all by itself speaks volumes, IMO.

One never knows how a trial court judge will rule.

They are paid to act within the law. That is their official capacity. Acting outside the law is in their personal capacity. The court will have to sort it out. The HOA will also be defendants as I shall give them one final opportunity to correct their errors. All parties are guilty of Ohio criminal statutes which are covered under the criminal code for thefts. It is the charges made for mail fraud as mail fraud is federal crime. I have been establishing willful intent to violate my legal rights in the declaration contract and governing Ohio laws as willful intent to commit fraud and willful intent to inflict emotional distress. No one can be paid to violate the law. That is not why the lawyer and management are hired. They are advisors and must act within the law. This is so basic. You continuously project your feelings. I am exercising my expression of my case as a case and not looking for sympathy. Separating fact from speculation is foreign to you.

Your fact pattern isn't equivalent to mine. Ohio law and case law is clear. There is clear cut due process requirements and there are requirements in case law that give the test of reasonableness of enforcement. In all aspects the association, attorney, and manager have failed to meet the standard. We can't establish any material fact without a legal process which establishes the law (rule) and the facts. This is known as a decision. Enforcement cannot occur without a decision. How would a person know what to do when a pending decision is not presented? You are out there looking for some way I could be violated in court. It is possible but highly unlikely as I have researched my case and it is solid.

Do tell.

-- Please explain to me what your "damages" are in your claim of intentional infliction of emotional distress. And I do mean "damages" as the case law defines damages in IIED cases.

-- Please provide the elements, to be proved, in an abuse of process claim. This is like four bullet points.

-- Please provide the elements, to be proved, in a malicious prosecution claim. Again, this is like four bullet points.

-- One Ohio law firm has posted on the net:

"Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor."

Please explain how your the underlying process or legal action has been resolved in your favor.

"Hence we have a phony pandemic with no scientific basis and so many believe it because they trust a group of supposed experts to the exclusion of opposite opinions and evidence through censorship."

Spouting this shit has no place on this forum.

John speaks the truth. Amen brother.

We just wait on the update of how this all goes. It is not going to go well. It is like watching a slow train wreck...

We just do not get it how a lawyer and manager are in such cahoots with each other to be so criminal in their actions.