Applicability of ORC 5312

Started by BethY2 • 3 replies • 272 views

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BethY2 (Ohio)
Posts: 1

Posted:

I am located in an Ohio neighborhood that has a non-profit corporation (The Association) created for the sole purpose to manage and maintain a single common area park. We have an active board with bylaws created in the 40's and they have never been recorded or updated. The Association is currently trying to update and record the bylaws to bring them current. There is a minority of home owners, including 2 attorneys, who are being obstructive. They are pushing that the ORC 5312 does NOT apply to us. What does the ORC take precedent over and what does it not take precedent over? We are trying to find a lawyer/firm who is an expert in the regulation of planned communities.

CathyA3 (Ohio)
Posts: 6,299

Posted:

You'll probably need a legal opinion, so it's good you're looking for an attorney.

ORC 5312 says this: "(A) Any planned community in this state is subject to this chapter. No person shall establish a planned community unless that person files and records a declaration and bylaws for that planned community in the office of the recorder of the county or counties in which the planned community is located."

My non-lawyer opinion is that it does apply to your community, but given its age there may be something else going on. The question is whether or not your community fits the definition of "planned community". With common area that the homeowners are responsible for maintaining, I would guess that it does, but the devil is in the details.

If you want to email me offsite, I can let you know about the legal firm my condo association used: quizzigal13 "at" gmail.com

AugustinD
Posts: 3,698

Posted:

For the moment, I am going to assume HOA/COA "bylaws" in Ohio also contain covenants or have the force of covenants.

Quote:

Posted By BethY2 on 05/19/2022 12:33 PM
We have an active board with bylaws created in the 40's and they have never been recorded

Per CathyA3's citation to ORC 5312.02 (A), I think the fact that no person nor corporation recorded the bylaws might very well translate to first, ORC 5312 not applying to your subdivision; and second, precluding the board merely recording the latest bylaws in the belief that, presto chango, now ORC 5312 applies. IOW I do not think the Board merely recording whatever bylaws it has can force ORC 5312 to apply. Why not?

Recording a document puts the world, including all those considering buying into the subdivision, on legal notice of the existence of the document. If the Bylaws had been recorded with the county before anyone bought into the HOA, then the buyer would know in advance these bylaws encumber the land that she or he is considering purchasing. The courts say these bylaws/encumbrances/covenants are contractual terms. Without this notice in advance of purchase, it's not fair to subsequently subject the lots to these bylaws (effectively a contract) without the consent of every single owner.

At a minimum, I think these owners who are trying to obstruct things could turn this into quite the legal fight.

Meanwhile someone or perhaps all the owners is responsible for the park, with all the risks of liability this entails. There may still be a lawful nonprofit corporation here, but without ORC 5312 applying.

I agree of course that whatever board you have needs to find an attorney (like yesterday) and sort this out.

Note: In the law, "person" is often defined to include "corporation."

JeffT2 (Iowa)
Posts: 880

Posted:

The following is the definition of a Planned Community. Do you meet this definition? What documents have been recorded on your property? Do you have a deed, common plan, or declaration? Any restrictions or reference to the common property? Who owns the property? Have you gone to the county recorder's office?

Section 5312.01 | Definitions.
Ohio Revised Code/Title 53 Real Property/Chapter 5312 Ohio Planned Community Law

(M) "Planned community" means a community comprised of individual lots for which a deed, common plan, or declaration requires any of the following:

(1) That owners become members of an owners association that governs the community;

(2) That owners or the owners association holds or leases property or facilities for the benefit of the owners;

(3) That owners support by membership or fees, property or facilities for all owners to use.

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