PROPER PRECEDURE TO AMMEND CC&R's and when do they take effect OHIO

Yes, amendments become effective on the day that they're recorded. It doesn't matter when the process started, or what was promised to an owner - the board must act in accordance with the recorded CC&Rs as they exist on the date that they act. But I'm not a lawyer, so you may want to get an actual legal opinion on this - particularly if an amendment is recorded after a particular action such as foreclosure has already begun.

When we amended our CC&Rs, the entire process took the better part of a year. It started with the board passing our recommendations to our attorney, who researched the law (including relevant case law) and produced the written amendments. Homeowners were given the text of the amendments, a plain English version of them, and the ballot for voting. The voting process remains open until a decision is reached (in Ohio 75% homeowner approval means the amendment has passed, 25$ no means the amendment has failed, anything else means no decision). Our community manager monitored the vote, and we had to do two additional mailings to deal with new homeowners and non-responders. After we had final decisions, we informed the attorney that the amendments had passed, and he had them recorded.

I'm puzzled why the board should not be allowed to place liens. Did I read that correctly? Liening is an essential piece of the collection process and protects the association if a delinquent owner tries to sell their home. It's also *much* less costly than foreclosure, and is often the only option available in cases that may not be suitable for foreclosure. Did the amendment say that liens should only be filed by the association attorney or other collecting agent, or that the decision to place a lien should not be made by the board? (FWIW, my community's governing docs state that placing a lien is a duty of the board, which is why I'm questioning this.)

OK, now that makes sense. It sounds like portions of the state law defer to the community's CC&Rs, and your unamended CC&Rs lack important provisions that allow the association to collect delinquent assessments and transfer the collection costs to the delinquent owner.

If this situation was mot corrected until 2023 when the amendments were recorded, I think that the board erred in filing the lien and transferring the legal costs to the homeowner prior to then, and if the owner paid them the money should be refunded. However, if the delinquency still exists today, the board could file a lien today and begin transferring any legal costs *incurred after the recording date*. Again, I'm not a lawyer, so take this with a grain of salt.

FWIW, I can see how the board made the mistakes that it did. The rule of thumb is that state law overrides the CC&Rs when they do not agree. However, you have to read these statutes carefully for individual provisions that defer to the CC&Rs and other "gotcha" language. A common gotcha phrase is "unless specified otherwise elsewhere". Learning to read legalese and really understand the CC&Rs can be a challenge.

Oops. Sorry wrong post responding to. On my phone and could not see the whole screen...

On the other hand... the words in bold suggest that the unamended CC&Rs did provide some level of authority - we just don't know the extent of the authority the board did have and how much their hands were tied.

I agree with John - I've never seen CC&Rs that made collecting delinquent assessments so difficult. Curbing abuses, yes. But filing a lien is a pretty basic step. And I vaguely remember reading somewhere that the unpaid assessments themselves create the lien. But take that with another grain of salt.

The same law firm that wrote the letter knowingly let the board file liens and suit. I think they should be held liable.

It sounds like we are missing a few details in this situation. I do not see any HOA not having the right to collect legal and other fees from filing a lien or foreclosure. Those expenses are part of the lien or foreclosure process. Why wod there be an amendment to not do this?

Something does not make sense here or intentionally left out. A member not paying their dues no matter the reason is subject to paying dues owed and the legal dues involved.

Have not seen the whole letter. I only what you choose to post. I can not tell what the point is except to defend the member. Which I am still not convinced is in the right.

The suit is still ongoing Owner cannot pay anything as they will not except.

Yes written by the same attorney.

Don't know if they are written correctly.

There was no notification of a membership vote or a proposal.

The outcome is they illegally amended CC&Rs.

Before you say anymore read from the beginning to understand all the timelines.

It still does not make sense. Am I the only one here who is confused? It looks one sided. Can not get a understanding of it.

The board wanted some amendments but the member did not get to vote. So now they say not valid because did not vote. Now votes in and member says does not apply or comply. I do not understand the amendments. Plus the member kept not paying dues. So they think that gets them out of not paying?

Still lost? Suit against who and why?

If this is the law firm I think it is, one of their first acts with a new client is to review the CC&Rs to make sure they're compliant with current state law and to make recommendations where there are potential issues.

Correct, but the board did not act on it and never had a vote by members and just recorded them in Jan 2023 without a member vote.

They can't amend documents to change the outcome of a lawsuit that started in Jan 2021.

Even if they were legally done they can not use them in this lawsuit

You wouldn't be let off the lot without insurance!

Our HOA it took a "special meeting" of the membership to cast their vote to make changes. However, many HOA's this is not a requirement. Quote the section where your CC&R's require a majority of member votes to pass? Each HOA varies. Some can pass it by only 51% of the vote. Once that is met why bother the rest of the 49% to cast a vote? Do not know from what you posted the rules of change/ammending rules.

Plus it would make no sense at all the HOA to NOT charge for lien and their legal fees. It is part of the lien! It is like when you file a small court claim. You have to pay a fee to the court to file. If you win the case, then you can possibly get that fee back. A court can only make one WHOLE not a profit. A lien cost money to file to collect on dues money that is owed. Would it make sense Not to get that money back as well?

Yes to this.

My condo community did two sets of amendments. One amendment brought us into compliance with the most current state law and was passed by board vote only, with documentation in the board meeting minutes. The other amendments revised some of our restrictions and required homeowner approval (75% approval needed). This was done via snail mail (no meeting), and the ballots and final tallies are part of our records. After the board vote for the first and the final vote tallies on the second group were finished, we informed the lawyer of the results and he had the approved amendments recorded.

I'm pretty sure Guy's HOA uses the same law firm we did. Some of the attorneys specialize in collection activities. They know their stuff and would never advise a board to do things that would leave them open to legal challenge.

Association governing documents, we found that they do not provide the board with full authority granted under Ohio Condominium Act regarding the following.

1-levy enforcement assessments
2-Levy administration late charges
3-Impose return check charges
4-levy charges for damages caused to the common area
5-File a lien for unpaid items 1-4 above and file a lien for unpaid collection and/or legal fees.
6-file evection actionns
7-Determine the application of payments instead of permitting the owner to determine if the payment is applied to current fees or past due charges.
8-Suspend voting rights and/or recreational facility use.
9-permit unexpected funds at year-end to be deposited into reserve funds. If the amendment is not enacted, these funds will need to be refunded to owners and
10-Exercise all of the other extensive powers listed in the Ohio Condominium Act.

COST OF COLLECTIONS
1987 Ohio Supreme court issued an opinion that allows associations to charge back legal fees to the delinquent owner so long as the language is in the governing documents this language is NOT in your documents.