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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
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Experience:  29 years of experience in General Practice, Real Estate Law and Estate Law.
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If a non profit condominium association conducts a closed

Customer Question

If a non profit condominium association conducts a closed Board meeting and makes decisions, excluding personnel matters, is a role call vote required that will be entered into public recorded. The State of my interest is Ohio.
Thanks for your reply. Please reference any reading that will advance my search.
Be Well and thanks.
Richard E. Foster
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 9 months ago.

Welcome and thank you for your question. The governing documents your Condo/HOA should set out the required voting procedures. Do you have a copy of your governing documents?

At the State and Federal level all HOA's are governed in Ohio by the following laws:

Homeowner Associations are governed by a chain of governing documents and laws.

  • The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.
  • The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.
  • The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.
  • The Bylaws are the rules for management and administration.
  • Resolutions are additional rules and regulations that the association may adopt.
  • Federal Laws also apply. Some but not all include the The Fair Housing Act, Internal Revenue Codes, the American Disabilities Act, the Virginia Graeme Baker Pool and Spa Safety Act , the FCC OTARD Rule (Over the Air Reception Devices - Satellite Dishes) and the Fair Debt Collection Practices Act.
  • Information regarding State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations are provided below and in the FAQ section of the Resouce Center. In addition there are typically additional state laws that are not specific to Common Interest Communities which require compliance. Some examples include stormwater runoff, coastal development, elevator inspections for condos, and pool operations to name a few.
  • Local Ordinances, while not specific to homeowner associations, apply to building codes, animal control, abandoned cars, water restrictions, etc.
  • Additional legal regulations can exist in the form of case law; standards set by professional organizations such as accountants, engineers, architects, home inspectors, and real estate brokers; as well as lender requirements.

Considerations:

  • State laws affecting Common Interest Communities vary widely.
  • Bills affecting Common Interest Communities are frequently being introduced in state legislatures and may be in different stages of consideration, approval, or enactment.
  • It is not uncommon to find conflicts within or between governing documents such as the covenants and the bylaws. There may also be conflicts between governing documents and statutes. When this occurs, attorneys must often consider applying Rules of Intepretation.
  • Because of the wide variance in state laws, constant changes and possible conflicts in governing documents or statutes, it is strongly recommended that association boards and members seek legal counsel and especially with firms that have expertise or strong practice experience in the area of Common Interest Community law. A good starting point is to check the HOA-USA Partner Directory for your respective state.

Ohio State Laws:

 

  • Ohio Condominium Law (Quick Reference)
  • Ohio Condominium Law (Ohio Revised Code, Title 53, Chapter 5311 Condominium Property)
  • Ohio Planned Community Law (Ohio Revised Code, Title 53, Chapter 5312 Ohio Planned Community Act)
  • Ohio Fire Laws - The law states that people living in condos, townhomes or apartments are not allowed to grill on wood decks. Ohio Fire Code Section 308.3.1 (PDF)

http://www.hoa-usa.com/statelaws/oh.aspx

Can you give me an example of the type of matters that the Condo Board is not requiring a vote on so we can check the State laws and your governing laws to see if the board is in violation?

Expert:  Attyadvisor replied 9 months ago.

Just a little background.

5311.22 Voting.

(A) Unless otherwise provided in the declaration or bylaws, each unit owner may exercise that percentage of the total voting power of all unit owners on any question for which the vote of unit owners is permitted or required that is equivalent to the undivided interest in the common elements appurtenant to the owner's unit.

(B) Fiduciaries who are owners of record of a unit or units may vote their respective interests as unit owners. Unless otherwise provided in the declaration or bylaws, if two or more persons, whether fiduciaries, tenants in common, or otherwise, own undivided interests in a unit, each person may exercise the proportion of the voting power of all of the owners of the unit that is equivalent to the person's proportionate undivided interest in the unit.

(C) A fiduciary for a unit owner or of the estate of a unit owner may vote as though the fiduciary were the unit owner when the fiduciary has furnished to the unit owners association proof, satisfactory to it, of the fiduciary's appointment and qualification as an executor under the last will of a deceased unit owner , an administrator of the estate of a deceased unit owner , a guardian, committee, or conservator of the estate of a minor or incompetent who is a unit owner , a trustee in bankruptcy of a unit owner , a statutory or judicial receiver or liquidator of the estate or affairs of a unit owner , or an assignee for the benefit of creditors of a unit owner.

(D) When any fiduciary or representative of a unit owner who is not described in division (C) of this section has furnished the unit owners association with satisfactory proof of authority, that person may vote as though a unit owner."

http://codes.ohio.gov/orc/5311

5311.08 Unit owners association.

"(A)

(1) Every condominium property shall be administered by a unit owners association . All power and authority of the unit owners association shall be exercised by a board of directors, which the unit owners shall elect from among the unit owners or the spouses of unit owners. If a unit owner is not an individual, that unit owner may nominate for the board of directors any principal, member of a limited liability company, partner, director, officer, or employee of that unit owner.

(2) The board of directors shall elect a president, secretary, treasurer, and other officers that the board may desire.

(3) Unless otherwise provided in the declaration or the bylaws, all meetings of the unit owners association are open to the unit owners, and those present in person or by proxy when action is taken during a meeting of the unit owners association constitute a sufficient quorum.

(4)

(a) A meeting of the board of directors may be held by any method of communication, including electronic or telephonic communication provided that each member of the board can hear, participate, and respond to every other member of the board.

(b) In lieu of conducting a meeting, the board of directors may take action with the unanimous written consent of the members of the board. Those written consents shall be filed with the minutes of the meetings of the board.

(B) The unit owners association shall be governed by bylaws. No modification of or amendment to the bylaws is valid unless it is set forth in an amendment to the declaration, and the amendment to the declaration is filed for record. Unless otherwise provided by the declaration, the bylaws shall provide for the following:

(1)

(a) The election of the board of directors of the unit owners association;

(b) The number of persons constituting the board;

(c) The terms of the directors, with not less than one-fifth to expire annually;

(d) The powers and duties of the board;

(e) The compensation of the directors;

(f) The method of removal of directors from office;

(g) The election of officers of the board;

(h) Whether or not the services of a manager or managing agent may be engaged .

(2) The time and place for holding meetings; the manner of and authority for calling, giving notice of, and conducting meetings; and the requirement, in terms of undivided interests in the common elements, of a quorum for meetings of the unit owners association;

(3) By whom and the procedure by which maintenance, repair, and replacement of the common elements may be authorized;

(4) The common expenses for which assessments may be made and the manner of collecting from the unit owners their respective shares of the common expenses;

(5) The method of distributing the common profits;

(6) By whom and the procedure by which administrative rules governing the operation and use of the condominium property or any portion of the property may be adopted and amended. These rules may govern any aspect of the condominium property that is not required to be governed by bylaws and may include standards governing the type and nature of information and documents that are subject to examination and copying by unit owners pursuant to section 5311.091 of the Revised Code, including the times and location at which items may be examined or copied and any required fee for copying the information or documents.

(C)

(1) The unit owners association shall be established not later than the date that the deed or other evidence of ownership is filed for record following the first sale of a condominium ownership interest in a condominium development. Membership in the unit owners association shall be limited to unit owners, and all unit owners shall be members. Until the unit owners association is established, the developer shall act in all instances in which action of the unit owners association or its officers is authorized or required by law or the declaration.

(2)

(a) Not later than sixty days after the developer has sold and conveyed condominium ownership interests appertaining to twenty-five per cent of the undivided interests in the common elements in a condominium development, the unit owners association shall meet, and the unit owners other than the developer shall elect not less than one-third of the members of the board of directors.

(b) When computing undivided interests in expandable condominium properties for purposes of divisions (C) and (D) of this section, the undivided interests in common elements shall be computed by comparing the number of units sold and conveyed to the maximum number of units that may be created, as stated in the declaration pursuant to division (C)(8) of section 5311.05 of the Revised Code.

(D)

(1) Except as provided in division (C) of this section, the declaration or bylaws of a condominium development may authorize the developer or persons the developer designates to appoint and remove members of the board of directors of the unit owners association and to exercise the powers and responsibilities otherwise assigned by law, the declaration, or the bylaws to the unit owners association or to the board of directors. The authorization for developer control may extend from the date the unit owners association is established until sixty days after the sale and conveyance to purchasers in good faith for value of condominium ownership interests to which seventy-five per cent of the undivided interests in the common elements appertain, except that in no case may the authorization extend for more than five years after the unit owners association is established if the declaration includes expandable condominium property or more than three years after the unit owners association is established if the declaration does not include expandable condominium property.

(2) If there is a unit owner other than the developer, the declaration of a condominium development shall not be amended to increase the scope or the period of the developer's control.

(3) Within sixty days after the expiration of the period during which the developer has control pursuant to division (D)(1) of this section, the unit owners association shall meet and elect all members of the board of directors of the association. The persons elected shall take office at the end of the meeting during which they are elected and shall, as soon as reasonably possible, appoint officers.

(E) The board of directors, or the developer while in control of the association, may take any measures necessary to incorporate the unit owners association as a not-for-profit corporation." http://codes.ohio.gov/orc/5311.08

To your question.

If a non profit condominium association conducts a closed Board meeting and makes decisions, excluding personnel matters, is a role call vote required that will be entered into public recorded. The State of my interest is Ohio.
Your governing documents should set the type of matters that can be discussed in an executive (closed) session. Can you tell me what your governing state with regard to closed to owners meetings and the procedures that must be followed?

Expert:  Attyadvisor replied 9 months ago.

Ohio is working toward more transparency. The are trying to model the laws after the Florida Sunshine Laws.

Under Ohio law a closed meeting or call for an Executive Session are very specific. They are listed below:

  • Legal issues
  • Contracts
  • Disciplinary actions
  • Personnel matters
  • Assessments -
  • Foreclosure -

https://uakron.edu/dotAsset/2bed9c24-0110-4b6a-a1eb-87e7bb1ed73d.pdf.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work I would appreciate it. Thank you for using JA!

Expert:  Attyadvisor replied 9 months ago.

You may not be aware that the attorneys on the site only receive credit for their work if the customer takes the time to rate the attorney's service positively. I hope that the information I provided was helpful. Thank you for your consideration.

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