First District: Changes to Condominium Common Areas Do Not Need Unanimous Owner Approval
A Cincinnati condo owner is down 30-love in tennis court controversy after the First District Court of Appeals upheld a decision favoring the condominium owners’ association.
Eva Hoffman, an owner in the Masions Lafayette condominium complex since 1986, has asked the courts to stop the other members of the Maisons Lafayette Condominium Block A Owners’ Association from removing the tennis court the owners share in the common area adjacent to the high-rise unit.
The First District Court of Appeals this week determined the ownership and maintenance of the condominium complex is governed by a declaration, and the declaration serves as a contract between the unit owners and the condo association. The declaration states that an amendment to the declaration requires a vote of 75 percent of the unit owners’ voting power. However, a vote affecting some provisions, including the “undivided interest in the common elements” requires unanimous approval by the unit owners.
In 2013, the tennis court was deteriorating and the association proposed an amendment to the declaration to remove the court. The unit owners were asked to vote and at least 75 percent of the voting interests agreed to remove it.
Hoffman contends the tennis court is a common element in which she has an undivided interest. She argued that the declaration mirrors a provision of condominium law in R.C. 5311.04(E) that requires a unanimous vote to take out the court.
She filed suit in Hamilton County Common Pleas Court to require a unanimous vote and for an injunction to block the association from moving forward with the renovation. The trial court granted summary judgment to the association, and Hoffman appealed to the First District.
Writing for the court, Judge Lee H. Hilderbrandt Jr. stated the declaration and the state law require a unanimous vote when an act is taken to reduce a unit owner’s rights and grant more power to others.
“In the case of removing the tennis court, there is no infringement of rights because all unit owners are affected equally,” Judge Hilderbrandt ruled. “If the parties had intended to require a unanimous vote for any change to the common elements themselves, they could have adopted such a requirement in plain terms.”
The court noted that Hoffman’s case relied heavily on a 1974 Franklin County Court of Common Pleas decision, Grimes v. Moreland, where the court ruled a unanimous vote was required by the homeowners’ association after a portion of the common area was fenced off to install air-conditioning equipment. Judge Hilderbrandt stated the fencing constituted a taking of the property because it reduced the amount of common area shared by the unit owners, and the ruling did not apply to Hoffman’s situation.
“As the trial court correctly noted, the removal of the tennis court in this case did not result in the taking of property from Hoffman; it merely changed the character of the common property. Because there was no change in the unit owners’ undivided interest in the common elements, a unanimous vote was not required.” he wrote.
Judges Sylvia Sieve Hendon and Patrick Dinkelacker concurred.
Hoffman v. Maisons Lafayette Condominium Block A Owners' Assn., 2014-Ohio-4645
Civil Appeal From: Hamilton County
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 22, 2014
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