Posted:
Mary that is going forward, there was also a whole section that BOD could add "Unless otherwise provided in the Declarations & Bylaws", I know because we did it.
A. Changes Which Can Be Enacted by Board Vote. All of the Code sections summarized in this part begin with "unless otherwise provided by the Declaration or By-Laws". It is imperative that the Board (through its legal counsel) carefully review the Declaration and By-Laws to determine if a section of those documents already address an issue in one of these Code sections. For example, Section 5311.081(B)(1) states that unless otherwise provided in the Declaration and/or By-Laws, the Association, through its Board, may hire and fire an attorney. If the Declaration is silent on this issue, the Board may amend the Declaration to include this Code Section. If the Declaration conflicts with the Statute (ie it provides that the Association can only hire an attorney by a majority vote of the owners), then the Board cannot amend the Declaration to include this Code Section and the owners must vote on the amendment the same way they would if there was no statute (at least a 75% vote). If the Board can amend the Declaration, it should, but it can only do so by recording an amendment with the County Recorder's Office. Once it does so, an owner only has one year from the recording date to challenge the validity of the amendment in Court.
5311.05(E)(3)
1. Definition of "Common Elements" and a "Unit". It would be extremely unusual for a Declaration to not define these terms. As it always has, the Code gives definitions by default. There were no substantive changes to this section of the Code. Unless the definition in the Declaration is woefully incomplete, the Code probably will not be helpful. Section 5311.03 (D)(2) does clarify, however, that windows and doors, sashes, thresholds, frames, jambs and hardware in the perimeter walls, floors, ceilings are part of the unit.
5311.01(F) and 5311.03 (D)(2)
2. If the Association or owners are required to be members of a non-profit organization that provides facilities, recreation, education, or social services to owners of property other than the condominium property, then the declaration must state so (for example, the owners are also required to be members of a swim club which also serves other non owners).
5311.05(B)(9)
3. If the owners of two adjoining units want to re-allocate their unit boundaries and Limited Common Elements (with a corresponding re-allocation of Common Elements), they must do so by submitting a written application to the Board. Within thirty days from receipt of the application, unless the Board finds it unreasonable, the Board must prepare an amendment to the Declaration making the reallocation, at the affected owners' expense.
5311.031
4. Similarly, if the owners of two units want to re-allocate the right to use Limited Common Elements, they must prepare an amendment to the Declaration at their expense and submit the amendment to the Board, who records it at the affected unit owners' expense. For example, owners want to switch or assign the right to use a Limited Common Element garage.
5311.032(A)
5. All meetings of the Association are open to the owners.
5311.08(A)(3)
6. The people present in person or by proxy at an owners meeting constitute a quorum. Most Declarations "otherwise provide" on this subject matter.
5311.08(A)(3)
7. The Association, through the Board, must adopt and amend budgets for revenues, expenditures, and reserves in an amount adequate to repair and replace major capital items in the normal course of operations without the necessity of special assessments. The amount set aside annually for reserves must not be less than ten percent (10%) of the budget for that year unless the reserve requirement is waived annually by the owners exercising at least a majority of the voting power of the Association.
5311.081(A)(1)
8. The new code also gives quite a few discretionary powers to the Board of Directors. Although most of these powers are probably already in the Declaration and/or By-Laws, some may not be. They are as follows:
a. Hire and fire managing agents, attorneys, accountants and other independent contractors and employees that the Board determines are necessary in the management of the condominium property.
b. Involvement in litigation or administrative proceedings involving the Association, the Board, or two (2) or more unit owners relating to matters affecting the condominium property.
c. Enter into contracts relating to the operation of the condominium property.
d. Regulate the use, maintenance, repair, replacement, modification and appearance of the condominium property.
e. Adopt rules that regulate the use or occupancy of units, and the maintenance, repair, replacement, modification, and appearance of the units, Common Elements, and Limited Common Elements when the actions regulated by those rules affect Common Elements or other units.
f. Cause additional improvements to be made as part of the Common Elements.
g. Purchase, encumber and convey units and subject to any restrictions in the Declaration and with the seventy-five percent (75%) approval of the owners, purchase, encumber, and convey property.
h. Acquire and dispose of personal property.
i. Hold title in the name of the Association to any real property or personal property acquired by the Association.
j. Grant easements, leases, licenses, and concessions through or over the Common Elements.
k. Impose and collect fees or other charges for the use, rental or operations of the Common Elements or for services provided to owners.
l. Impose interest and late charges for the late payment of assessments, returned check charges, and reasonable enforcement assessments for violations of the governing documents and/or damage to the Common Elements or other property.
m. Adopt and amend rules that regulate the collection of delinquent assessments and the application of payments of delinquent assessments.
n. Impose reasonable charges for preparing, recording or copying amendments to the Declaration or statements of unpaid assessments.
o. Enter a unit when conditions exist that involve an imminent risk of damage or harm to Common Elements, another unit, or to the health or safety of the occupants of that unit or another unit.
p. If provided in the Declaration or By-Laws, assign the Association's rights to common assessments or other future income to a lender as security for a loan to the Association.
q. Suspend the voting privileges and use of recreational facilities of an owner who is delinquent on the payment of assessments for more than thirty (30) days.
r. Purchase insurance and fidelity bonds the Directors consider appropriate or necessary.
s. Invest excess funds in investments that meet standards for fiduciary investments under Ohio law.
t. A catch all: exercise powers that are conferred by the Declaration or By-Laws; powers which are necessary to incorporate the Association; powers permitted to be exercised in Ohio by a non-profit corporation; or powers necessary for the government and operation of the Association.
9. The Association's lien for assessments includes common expenses, interest, administrative late fees, enforcement assessments, collection costs, attorney's fees, and paralegal fees. The Code is very specific that if the Association wishes to impose an enforcement assessment due to an owner's violation of the Declaration, By-Laws or Rules, a specific procedure is necessary:
a. The Association must give the owner written notice of a description of the property damage or violation; the amount of the proposed assessment; a statement that owner has a right to a hearing before the board to contest the violation; a statement of procedures required to request a hearing; and a reasonable date by which the owner must cure the violation to avoid an assessment.
b. The owner can request a hearing by written notice within ten days from receiving the Board's letter. No request - no hearing necessary - automatic imposition of assessment.
c. The Board must hold a hearing if requested and give the owner seven days notice of the date/time/place.
d. Within thirty days of the hearing, the Board must give written notice of the assessment.
5311.18(A)(1)
10. The Association must credit the owners' payments in the following priority:
a. Interest
b. Administrative late fees
c. Collection costs, attorney's fees, and paralegal fees
d. Common expenses or "penalty" (enforcement) assessments.
5311.18(A)(2)
11. The Association may evict a tenant for violations of the Declaration, By-Laws, or Rules. The Association must give the owner at least ten (10) days written notice. The Association may also be required to give the tenant written notice The costs of the eviction, including reasonable attorney's fees, are charged to the owner and become a lienable special assessment.
5311.19(B)
Quoted from http://www.caiohiovalley.org/link/linkshow.asp?link_id=29197&assn_id=10391&ptype=print
by: Amy Schott Ferguson, Esq
Studies show that 5 out of 4 people have problems with fractions