CathyA3 (Ohio)
Posts: 6,299
Posts: 6,299
Posted:
I’ve been reading through the text of this bill which was signed into law by the governor and the provisions of which take effect in mid-September 2022. The bill had broad bipartisan support, a minor miracle these days, and it updated several provisions of Ohio’s existing community association laws. Among other things, the new law addresses the board’s authority to send notices electronically, regulates solar panels, limits record requests (*), and removes outdated language that may be discriminatory.
(* This is actually good, as I’ll explain below.)
Here are some details that caught my eye.
Good
* Ohio is inching toward being an open meeting state as far as community associations go. Meetings must be open to the membership unless the Declaration/bylaws say otherwise. (Question: my bylaws say that board meetings are to be held “without notice”. Is that equivalent to “saying otherwise” as far as the new law goes?)
* Electronic forms of meetings and notifications are now permitted. Actions taken without a meeting (ie. email) still require unanimous consent of the board and decisions documented in meeting minutes.
* Homeowners’ right to review records is now limited to those dated no earlier than five years from the date of request (along with the existing restriction on confidential records which did not change). I think this is good because it will help eliminate fishing expeditions and reduce the burden on older associations with a lot of paper records that go back years. I assume that earlier records could still be obtained in the case of legal disputes if they’re needed.
* The bill increased insurance requirements, including upping the limits for fire and extended to coverage from not less than 80& of fair market value to not less than 90% of replacement cost. I like this because the provision ties insurance limits to something closer to an actual dollar amount [replacement cost] vs. something that’s an educated guess [fair market value]. The new law also spells out in detail who must be covered by fidelity insurance and also ups the minimum required coverage to the maximum amount of funds in the custody of the association at any one time plus three months of operating expenses.
* Unless specifically prohibited by the Declaration, any owner of a unit suitable for installation of a solar system may do so, provided that either: 1) the unit contains a roof that is solely the owner’s responsibility to maintain, replace and insure: or 2) the declaration specifically allows for and regulates the type of solar installation permitted on common elements. A condo unit that is suitable for installation of a solar system is one that doesn’t have a unit above or below it – ie., townhouse style construction OK, second floor condo not OK.
Maybe Not So Good
The section dealing with record requests does not address record retention requirements, which I think is an oversight. It should at least cite other laws governing this, if these laws exist. (Our lawyers published a blog article listing recommended time periods for various association records. Oddly enough they recommend retaining legal documents related to litigation with third parties for 5 years and newsletters for 10 years, which makes no sense to me. But IANAL, so what do I know?)
Is This a Loophole?
The new law spells out the requirements needed to assess charges for damages to the common elements or fines for violations of the governing documents. These are:
* Written notice of intent to assess the fine or charges, including all of the typical stuff including info about requesting a hearing.
* If homeowner does not request a hearing in writing within the timeline spelled out in the notice, the right to a hearing is deemed to have been waived and the association may assess the fine or charges.
* The association may not levy a charge or fine before holding any hearing requested pursuant to this section of the law.
Does anyone else see the loophole here? What happens if an owner requests a hearing within the proper time frame and the hearing doesn’t take place for some reason? Can an owner plead a schedule conflict and re-schedule repeatedly, thus avoiding the fine or charge? There’s nothing in the law that addresses either party playing games like this. (I know, this is more trouble than a $50 dollar fine is worth, but I expect many of us know people who would play games just to be difficult. And it may well be worth it if the charge for damages is significant. I foresee legal wrangling.)
A Final Note
I bet I'm the only one in my community that knows about this bill.
(* This is actually good, as I’ll explain below.)
Here are some details that caught my eye.
Good
* Ohio is inching toward being an open meeting state as far as community associations go. Meetings must be open to the membership unless the Declaration/bylaws say otherwise. (Question: my bylaws say that board meetings are to be held “without notice”. Is that equivalent to “saying otherwise” as far as the new law goes?)
* Electronic forms of meetings and notifications are now permitted. Actions taken without a meeting (ie. email) still require unanimous consent of the board and decisions documented in meeting minutes.
* Homeowners’ right to review records is now limited to those dated no earlier than five years from the date of request (along with the existing restriction on confidential records which did not change). I think this is good because it will help eliminate fishing expeditions and reduce the burden on older associations with a lot of paper records that go back years. I assume that earlier records could still be obtained in the case of legal disputes if they’re needed.
* The bill increased insurance requirements, including upping the limits for fire and extended to coverage from not less than 80& of fair market value to not less than 90% of replacement cost. I like this because the provision ties insurance limits to something closer to an actual dollar amount [replacement cost] vs. something that’s an educated guess [fair market value]. The new law also spells out in detail who must be covered by fidelity insurance and also ups the minimum required coverage to the maximum amount of funds in the custody of the association at any one time plus three months of operating expenses.
* Unless specifically prohibited by the Declaration, any owner of a unit suitable for installation of a solar system may do so, provided that either: 1) the unit contains a roof that is solely the owner’s responsibility to maintain, replace and insure: or 2) the declaration specifically allows for and regulates the type of solar installation permitted on common elements. A condo unit that is suitable for installation of a solar system is one that doesn’t have a unit above or below it – ie., townhouse style construction OK, second floor condo not OK.
Maybe Not So Good
The section dealing with record requests does not address record retention requirements, which I think is an oversight. It should at least cite other laws governing this, if these laws exist. (Our lawyers published a blog article listing recommended time periods for various association records. Oddly enough they recommend retaining legal documents related to litigation with third parties for 5 years and newsletters for 10 years, which makes no sense to me. But IANAL, so what do I know?)
Is This a Loophole?
The new law spells out the requirements needed to assess charges for damages to the common elements or fines for violations of the governing documents. These are:
* Written notice of intent to assess the fine or charges, including all of the typical stuff including info about requesting a hearing.
* If homeowner does not request a hearing in writing within the timeline spelled out in the notice, the right to a hearing is deemed to have been waived and the association may assess the fine or charges.
* The association may not levy a charge or fine before holding any hearing requested pursuant to this section of the law.
Does anyone else see the loophole here? What happens if an owner requests a hearing within the proper time frame and the hearing doesn’t take place for some reason? Can an owner plead a schedule conflict and re-schedule repeatedly, thus avoiding the fine or charge? There’s nothing in the law that addresses either party playing games like this. (I know, this is more trouble than a $50 dollar fine is worth, but I expect many of us know people who would play games just to be difficult. And it may well be worth it if the charge for damages is significant. I foresee legal wrangling.)
A Final Note
I bet I'm the only one in my community that knows about this bill.