The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
H. B. No. 371 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
| |
Representatives Grossman, Perales
Cosponsor:
Representative Anielski
A BILL
To amend sections 5311.01, 5311.08, 5311.081,
5311.09, 5311.091, and 5311.22 and to enact
sections 5311.082, 5311.083, 5311.15, 5311.28 to
5311.33, and 5311.99 of the Revised Code to
require certain unit owners association managers
to hold a real estate broker's license, to make
changes to the board meetings, record retention,
and budget procedure requirements of the
Condominium Law, and to establish a registry of
condominium developments and the Ohio Condominium
Dispute Resolution Commission.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5311.01, 5311.08, 5311.081,
5311.09, 5311.091, and 5311.22 be amended and sections 5311.082,
5311.083, 5311.15, 5311.28, 5311.29, 5311.30, 5311.31, 5311.32,
5311.33, and 5311.99 of the Revised Code be enacted to read as
follows:
Sec. 5311.01. As used in this chapter, except as otherwise
provided:
(A) "Agent" means any person who represents a developer or
who acts for or on behalf of a developer in selling or offering to
sell any ownership interest in a condominium development. "Agent"
does not include an attorney whose representation of a developer
consists solely of rendering legal services.
(B) "Additional property" means land, including surface and
air rights, or improvements to land that are described in an
original declaration and that may be added in the future to an
expandable condominium property.
(C) "Affiliate of a developer" means any person who controls
a developer or is controlled by a developer. For the purposes of
this division:
(1) A person "controls" a developer if any of the following
applies:
(a) The person is a general partner, officer, member,
manager, director, or employer of the developer.
(b) The person owns, controls, holds with power to vote, or
holds proxies representing more than twenty per cent of the voting
interest in the developer, doing so either directly or indirectly,
acting in concert with one or more other persons, or through one
or more subsidiaries.
(c) The person controls, in any manner, the election of a
majority of the developer's directors.
(d) The person has contributed more than twenty per cent of
the developer's capital.
(2) A person "is controlled by" a developer if any of the
following applies:
(a) The developer is a general partner, member, manager,
officer, director, or employer of the person.
(b) The developer owns, controls, holds with power to vote,
or holds proxies representing more than twenty per cent of the
voting interest in the person, doing so either directly or
indirectly, acting in concert with one or more other persons, or
through one or more subsidiaries.
(c) The developer controls, in any manner, the election of a
majority of the person's directors.
(d) The developer has contributed more than twenty per cent
of the person's capital.
(3) "Control" does not exist for purposes of division (C)(1)
or (2) of this section if a person or developer holds any power
described in either of those divisions solely as security for an
obligation and that power is not exercised.
(D) "Body of water" means a stream, lake, pond, marsh, river,
or other body of natural or artificial surface water.
(E) "Common assessments" means assessments that are charged
proportionately against all units for common purposes.
(F) "Common elements" means, unless otherwise provided in the
declaration, the following parts of the condominium property:
(1) The land described in the declaration;
(2) All other areas, facilities, places, and structures that
are not part of a unit, including, but not limited to, the
following:
(a) Foundations, columns, girders, beams, supports,
supporting walls, roofs, halls, corridors, lobbies, stairs,
stairways, fire escapes, entrances, and exits of buildings;
(b) Basements, yards, gardens, parking areas, garages, and
storage spaces;
(c) Premises for the lodging of janitors or persons in charge
of the property;
(d) Installations of central services, including, but not
limited to, power, light, gas, hot and cold water, heating,
refrigeration, air conditioning, and incinerating;
(e) Elevators, tanks, pumps, motors, fans, compressors,
ducts, and, in general, all apparatus and installations existing
for common use;
(f) Community and commercial facilities that are not listed
in division (F)(2)(a), (b), (c), (d), or (e) of this section but
provided for in the declaration;
(g) All parts of the condominium property that are not listed
in division (F)(2)(a), (b), (c), (d), (e), or (f) of this section
that are necessary or convenient to its existence, maintenance,
and safety, that are normally in common use, or that have been
designated as common elements in the declaration or drawings.
(G) "Common expenses" means expenses designated as common
expenses in this chapter or in the declaration.
(H) "Common losses" means the amount by which the common
expenses during any period of time exceeds the common assessments
and common profits during that period.
(I) "Common profits" means the amount by which the total
income received from any of the following exceeds expenses
allocable to the particular income, rental, fee, or charge:
(1) Assessments charged for special benefits to specific
units;
(2) Rents received from the rental of equipment or space in
common elements;
(3) Any other fee, charge, or income other than common
assessments.
(J) "Common surplus" means the amount by which common
assessments collected during any period exceed common expenses.
(K) "Condominium" means a form of real property ownership in
which a declaration has been filed submitting the property to the
condominium form of ownership pursuant to this chapter and under
which each owner has an individual ownership interest in a unit
with the right to exclusive possession of that unit and an
undivided ownership interest with the other unit owners in the
common elements of the condominium property.
(L) "Condominium development" means a condominium property in
which two or more individual residential or water slip units,
together with their undivided interests in the common elements of
the property, are offered for sale pursuant to a common
promotional plan.
(M) "Condominium instruments" means the declaration and
accompanying drawings and plans, the bylaws of the unit owners
association, the condominium development disclosure statement
described in section 5311.26 of the Revised Code, any contracts
pertaining to the management of the condominium property, and any
other documents, contracts, or instruments establishing ownership
of or exerting control over a condominium property or unit.
(N) "Condominium ownership interest" means a fee simple
estate or a ninety-nine-year leasehold estate, renewable forever,
in a unit, together with an appurtenant undivided interest in the
common elements.
(O) "Condominium property" means all real and personal
property submitted to the provisions of this chapter, including
land, the buildings, improvements, and structures on that land,
the land under a water slip, the buildings, improvements, and
structures that form or that are utilized in connection with that
water slip, and all easements, rights, and appurtenances belonging
to the land or to the land under a water slip.
(P) "Conversion condominium development" means a condominium
development that was operated as a rental property and occupied by
tenants immediately prior to the submission of the property to the
provisions of this chapter.
(Q) "Convertible unit" means a unit that may be converted
into one or more units and common elements, including limited
common elements.
(R) "Declaration" means the instrument by which property is
submitted to the provisions of this chapter. "Declaration"
includes all amendments to that declaration.
(S) "Developer" means any person who directly or indirectly
sells or offers for sale condominium ownership interests in a
condominium development. "Developer" includes the declarant of a
condominium development and any successor to that declarant who
stands in the same relation to the condominium development as the
declarant.
(T) "Exclusive use area" means common elements that the
declaration reserves for delegation by the board of directors to
the use of a certain unit or units, to the exclusion of other
units.
(U) "Expandable condominium property" means a condominium
property in which the original declaration reserves the right to
add additional property.
(V) "Leasehold condominium development" means a condominium
development in which each unit owner owns a ninety-nine-year
leasehold estate, renewable forever, in the owner's unit, in the
land upon which that unit is situated, or in both, together with
an undivided leasehold interest in the common elements, with all
leasehold interests due to expire at the same time.
(W) "Limited common elements" means the common elements that
the declaration designates as being reserved for use by a certain
unit or units, to the exclusion of the other units.
(X) "Offer" includes any inducement or solicitation to
encourage a person to acquire a condominium ownership interest in
a condominium development.
(Y) "Par value" means a number, expressed in dollars, points,
or as a percentage or fraction, attached to a unit by the
declaration.
(Z) "Purchaser" means a person who purchases a condominium
ownership interest for consideration pursuant to an agreement for
the conveyance or transfer of that interest for consideration.
(AA) "Sale of a condominium ownership interest" means the
execution by both parties of an agreement for the conveyance or
transfer for consideration of a condominium ownership interest.
"Sale of a condominium ownership interest" does not include a
transfer of one or more units from the developer to another
developer, a subsidiary of the developer, or a financial
institution for the purpose of facilitating the sale or
development of the remaining or unsold portion of the condominium
property or additional property.
(BB) "Unit" means the part of the condominium property that
is designated as a unit in the declaration, is delineated as a
unit on the drawings prepared pursuant to section 5311.07 of the
Revised Code, and is one of the following:
(1) A residential unit, in which the designated part of the
condominium property is devoted in whole or in part to use as a
residential dwelling consisting of one or more rooms on one or
more floors of a building. A "residential unit" may include
exterior portions of the building, spaces in a carport, and
parking spaces as described and designated in the declaration and
drawings.
(2) A water slip unit, which consists of the land that is
under the water in a water slip and the land that is under the
piers or wharves that form the water slip, and that is used for
the mooring of watercraft.
(3) A commercial unit in which the property is designated for
separate ownership or occupancy solely for commercial purposes,
industrial purposes, or other nonresidential or nonwater slip use.
(CC) "Unit owner" means a person who owns a condominium
ownership interest in a unit.
(DD) "Unit owners association" means the condominium
association or other organization that administers the condominium
property and that consists of all the owners of units in a
condominium property.
(EE) "Watercraft" has the same meaning as in division (A) of
section 1547.01 of the Revised Code.
(FF) "Water slip" means a channel of water between piers or
wharves.
(GG) "Manager" or "managing agent" means a person that is
responsible, alone or in concert with others, for the management
of a condominium property.
Sec. 5311.08. (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) All meetings of the board of directors shall be open
to all unit owners. A portion of each board meeting shall be
allocated for comments by unit owners. A unit owner may send an
agent or a representative, as authorized by a notarized statement
of the unit owner, to attend a board meeting in the unit owner's
place.
(b) At least five days prior to a meeting of the board of
directors, the board shall post a notice of the meeting in the
common areas of the condominium property and on the web site
maintained by the association or managing agent, if the
association or managing agent has a web site. The board also shall
send notice to a unit owner who has requested to be included in a
mailing list, by electronic mail to the unit owner's electronic
mail address or by traditional mail to the unit owner's home
mailing address, as requested by the unit owner. The board shall
make all public materials provided to board members for the
meeting available to unit owners upon request.
(c) 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, and each
unit owner that participates, can hear, participate, and respond
to every other member of the board or unit owner.
(b) In lieu of conducting a meeting, the (d) 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 shall vote on the
record.
(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.
(F) If the services of a manager or managing agent are
engaged, the manager or managing agent shall comply with section
5311.15 of the Revised Code.
Sec. 5311.081. (A) Unless otherwise provided in the
declaration or bylaws, the unit owners association, through the
board of directors, shall do both of the following:
(1) 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, provided that the amount set aside annually
for reserves shall not be less than ten per cent of the budget for
that year unless the reserve requirement is waived annually by the
unit owners exercising not less than a majority of the voting
power of the unit owners association;
(2) Collect assessments for common expenses from unit owners.
(B) Unless otherwise provided in the declaration, the unit
owners association, through the board of directors, may exercise
all powers of the association, including the power to do the
following:
(1) Hire Subject to section 5311.15 of the Revised Code, hire
and fire managing agents, attorneys, accountants, and other
independent contractors and employees that the board determines
are necessary or desirable in the management of the condominium
property and the association;
(2) Commence, defend, intervene in, settle, or compromise any
civil, criminal, or administrative action or proceeding that is in
the name of, or threatened against, the unit owners association,
the board of directors, or the condominium property, or that
involves two or more unit owners and relates to matters affecting
the condominium property;
(3) Enter into contracts and incur liabilities relating to
the operation of the condominium property;
(4) Regulate the use, maintenance, repair, replacement,
modification, and appearance of the condominium property;
(5) Adopt rules that regulate the use or occupancy of units,
the maintenance, repair, replacement, modification, and appearance
of units, common elements, and limited common elements when the
actions regulated by those rules affect common elements or other
units;
(6) Cause additional improvements to be made as part of the
common elements;
(7) Purchase, encumber, and convey units, and, subject to any
restrictions in the declaration or bylaws and with the approvals
required by division (H)(2) or (3) of section 5311.04 of the
Revised Code, acquire an interest in other real property and
encumber or convey that interest. All expenses incurred in
connection with the acquisition, encumbrance, use, and operation
of that interest are common expenses.
(8) Acquire, encumber, and convey or otherwise transfer
personal property;
(9) Hold in the name of the unit owners association the real
property and personal property acquired pursuant to divisions
(B)(7) and (8) of this section;
(10) Grant easements, leases, licenses, and concessions
through or over the common elements;
(11) Impose and collect fees or other charges for the use,
rental, or operation of the common elements or for services
provided to unit owners;
(12) Impose interest and late charges for the late payment of
assessments; impose returned check charges; and, pursuant to
division (C) of this section, impose reasonable enforcement
assessments for violations of the declaration, the bylaws, and the
rules of the unit owners association, and reasonable charges for
damage to the common elements or other property;
(13) Adopt and amend rules that regulate the collection of
delinquent assessments and the application of payments of
delinquent assessments;
(14) Subject to applicable laws, adopt and amend rules that
regulate the termination of utility or other service to a
commercial unit if the unit owner is delinquent in the payment of
an assessment that pays, in whole or in part, the cost of that
service;
(15) Impose reasonable charges for preparing, recording, or
copying amendments to the declaration, resale certificates, or
statements of unpaid assessments;
(16) Enter a unit for bona fide purposes 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;
(17) To the extent provided in the declaration or bylaws,
assign the unit owners association's rights to common assessments,
or other future income, to a lender as security for a loan to the
unit owners association;
(18) Suspend the voting privileges and use of recreational
facilities of a unit owner who is delinquent in the payment of
assessments for more than thirty days;
(19) Purchase insurance and fidelity bonds the directors
consider appropriate or necessary;
(20) Invest excess funds in investments that meet standards
for fiduciary investments under Ohio law;
(21) Exercise powers that are:
(a) Conferred by the declaration or the bylaws of the unit
owners association or the board of directors;
(b) Necessary to incorporate the unit owners association as a
not-for-profit corporation;
(c) Permitted to be exercised in this state by a
not-for-profit corporation;
(d) Necessary and proper for the government and operation of
the unit owners association.
(C)(1) Prior to imposing a charge for damages or an
enforcement assessment pursuant to division (B)(12) of this
section, the board of directors shall give the unit owner a
written notice that includes all of the following:
(a) A description of the property damage or violation;
(b) The amount of the proposed charge or assessment;
(c) A statement that the owner has a right to a hearing
before the board of directors to contest the proposed charge or
assessment;
(d) A statement setting forth the procedures to request a
hearing pursuant to division (C)(2) of this section;
(e) A reasonable date by which the unit owner must cure the
violation to avoid the proposed charge or assessment.
(2)(a) To request a hearing, the owner shall deliver a
written notice to the board of directors not later than the tenth
day after receiving the notice required by division (C)(1) of this
section. If the owner fails to make a timely request for a
hearing, the right to that hearing is waived, and the board may
immediately impose a charge for damages or an enforcement
assessment pursuant to division (C) of this section.
(b) If a unit owner requests a hearing, at least seven days
prior to the hearing the board of directors shall provide the unit
owner with a written notice that includes the date, time, and
location of the hearing.
(3) The board of directors shall not levy a charge or
assessment before holding any hearing requested pursuant to
division (C)(2) of this section.
(4) The unit owners, through the board of directors, may
allow a reasonable time to cure a violation described in division
(B)(12) of this section before imposing a charge or assessment.
(5) Within thirty days following a hearing at which the board
of directors imposes a charge or assessment, the unit owners
association shall deliver a written notice of the charge or
assessment to the unit owner.
(6) Any written notice that division (C) of this section
requires shall be delivered to the unit owner or any occupant of
the unit by personal delivery, by certified mail, return receipt
requested, or by regular mail.
(D) Not later than thirty days after the board of directors
adopts a budget in accordance with division (A)(1) of this
section, the board shall provide to all the unit owners a summary
of the budget including an explanation of the amount and method of
calculating and funding reserves, if applicable.
Sec. 5311.082. (A) The division of real estate and
professional licensing in the department of commerce shall
establish and maintain a registry, in the form of a database, of
the names of unit owners associations in the state. Information in
the database shall be available for public viewing. The division
shall include access to the information in the database on the
division's web site and in other materials, as determined by the
superintendent of real estate and professional licensing.
(B) The division shall perform all of the following duties:
(1) Adopt, amend, and rescind rules in accordance with
Chapter 119. of the Revised Code to carry out sections 5311.082
and 5311.083 of the Revised Code governing the registration of
unit owners associations;
(2) Prescribe the form and content of all applications to be
used for registration and renewal of registration pursuant to
section 5311.083 of the Revised Code;
(3) Review applications for registration and issue
registration certificates to unit owners associations that meet
the requirements for registration pursuant to section 5311.083 of
the Revised Code;
(4) Collect all fees related to the registration and renewal
of registration certificates for unit owners associations;
(5) Maintain a written record of each unit owners association
registered with the division, which shall include such
documentation as required by the division. The record shall be
available for inspection by the public through the web site and
copies shall be made available pursuant to division (B) of section
149.43 of the Revised Code.
(6) Hire all division personnel necessary to implement
sections 5311.082 and 5311.083 of the Revised Code.
Sec. 5311.083. (A)(1) The board of directors of a unit owners
association shall apply to the division of real estate and
professional licensing in the department of commerce to register
the association on forms prescribed by the division. With the
application, the applicant shall submit any information required
by the division and a registration fee as specified in rules
adopted by the Ohio condominium dispute resolution commission
pursuant to division (A)(2) of section 5311.31 of the Revised
Code. In no event shall the registration fee exceed three dollars
for each unit.
(2) The director of commerce, by rule adopted in accordance
with Chapter 119. of the Revised Code, may reduce the amount of
the registration fee required by this section in any year if the
director determines that the total amount of funds the fee is
generating at the amount specified in the rules adopted by the
commission exceeds the amount of funds the division and the
commission need to carry out their powers and duties under this
chapter. If the director so reduces the amount of the registration
fee, the director shall reduce it for all owners or other persons
required to pay the fee under division (A)(1) of this section. If
the director has reduced the fee under division (A)(2) of this
section, the director may later raise it up to the amounts
permitted under division (A)(1) of this section if, in any year,
the director determines that the total amount of funds the fee is
generating at the reduced amount is insufficient for the division
and the commission to carry out their powers and duties under this
chapter.
(B) Upon receipt of the completed application form,
documentation, and registration fee, the division shall issue a
certificate of registration to the unit owners association. The
board of directors of the unit owners association shall display
the certificate in a conspicuous place on the premises of the
condominium property for which the registration was obtained. If
no appropriate place for displaying the certificate exists on the
premises, the board of directors shall keep the certificate of
registration on file and available for public inspection at the
board's office or at the office of the unit association's managing
agent.
(C)(1) Except as otherwise provided in this division, each
registration issued pursuant to this section shall expire annually
on the thirty-first day of August and may be renewed. The renewal
fee shall be the same as the initial registration fee prescribed
under division (A) of this section.
(2) The board of directors of a unit owners association that
fails to timely file its renewal with the division also shall be
required to pay a late penalty fee in an amount equal to fifty per
cent of the renewal fee prescribed under division (C)(1) of this
section.
(D) All registration and renewal fees collected pursuant to
this section shall be paid into the state treasury to the credit
of the division to be used by the division to carry out its powers
and duties under this chapter and by the commission.
Sec. 5311.09. (A)(1) The unit owners association shall keep
all of the following:
(a) Correct and complete books and records of account that
specify the receipts and expenditures relating to the common
elements and other common receipts and expenses;
(b) Records showing the allocation, distribution, and
collection of the common profits, losses, and expenses among and
from the unit owners;
(c) Minutes of the meetings of the association and the board
of directors;
(d) Records of the names and addresses of the unit owners and
their respective undivided interests in the common elements;
(e) Records showing the names and addresses of the members of
the board of directors and association officers;
(f) Records of all actions taken without a meeting of the
board of directors;
(g) The original or restated documents described in division
(B)(1)(b) of this section;
(h) All financial statements and tax returns, which shall be
kept for a minimum of three years;
(i) All current contracts into which the condominium
development has entered;
(j) Records of approvals or denials for requests for design
or architectural approval from the board of directors or the unit
owners association;
(k) Ballots, proxies, and other voting records of the board
of directors and the unit owners association, which shall be kept
for a minimum of one year.
(2) Within thirty days after a unit owner obtains a
condominium ownership interest, the unit owner shall provide the
following information in writing to the unit owners association
through the board of directors:
(a) The home address, home and business mailing addresses,
and the home and business telephone numbers of the unit owner and
all occupants of the unit;
(b) The name, business address, and business telephone number
of any person who manages the owner's unit as an agent of that
owner and, if that person is required to be licensed under section
4735.02 of the Revised Code, a copy of that person's license as a
real estate broker or salesperson.
(3) Within thirty days after a change in any information that
division (A)(2) of this section requires, a unit owner shall
notify the association, through the board of directors, in writing
of the change. When the board of directors requests, a unit owner
shall verify or update the information.
(B)(1) When elected members of a board of directors of a unit
owners association take control of the association, the declarant
or developer shall deliver to the board correct and complete
copies of all of the following:
(a) The books, records, and minutes referred to in division
(A) of this section;
(b) The declaration, the bylaws, the drawings prepared
pursuant to section 5311.07 of the Revised Code, as recorded, and
any articles of incorporation of the unit owners association, as
recorded;
(c) Except in the case of a conversion condominium,
documents, information, and sources of information concerning the
location of underground utility lines, and plans and
specifications that are not proprietary or copyrighted, of the
buildings, other improvements, and structures of the condominium
property that are reasonably available to the developer, but only
in connection with condominium developments declared on or after
the effective date of this amendment July 20, 2004, and
condominium developments that are declared prior to that date but
originally built or constructed on or after that date.
(2) The board of directors may commence a civil action on
behalf of the unit owners association in the court of common pleas
of the county in which the condominium property is located to
obtain injunctive relief or recover damages for harm resulting
from the declarant's or developer's failure to comply with
division (B)(1) of this section.
Sec. 5311.091. (A)(1) Except as otherwise prohibited by this
section, any member of a unit owners association or any manager or
managing agent of the condominium property may examine and copy
the books, records, and minutes information described in division
(A) of section 5311.09 of the Revised Code pursuant to reasonable
standards set forth in the declaration, bylaws, or rules the board
promulgates, which may include, but are not limited to, standards
governing the type of documents that are subject to examination
and copying, the times and locations at which those documents may
be examined or copied, and the specification of a reasonable fee
for copying the documents or the supervision of examination. A
member of the unit owners association, manager, or managing agent
desiring to examine or copy the information shall submit a notice
five days in advance of the date of examination.
(2) Unless otherwise provided in the declaration or bylaws
pursuant to division (B)(6) of section 5311.08 of the Revised
Code, the board of directors may establish a policy requiring a
unit owner, manager, or managing agent that requests records in
accordance with division (A)(1) of this section to pay a
reasonable charge for copies of the records or supervision for
examination of the records.
(B) The unit owners association is not required to permit the
examination and copying of any of the following from books,
records, and minutes:
(1) Information that pertains to condominium property-related
personnel matters;
(2) Communications with legal counsel or attorney work
product pertaining to pending litigation or other condominium
property-related matters;
(3) Information that pertains to contracts or transactions
currently under negotiation, or information that is contained in a
contract or other agreement containing confidentiality
requirements and that is subject to those requirements;
(4) Information that relates to the enforcement of the
declaration, bylaws, or rules of the unit owners association
against unit owners;
(5) Information the disclosure of which is prohibited by
state or federal law.
Sec. 5311.15. (A) No manager or managing agent of a
condominium development containing more than ten units shall
manage or be hired by a unit owners association pursuant to
sections 5311.08 and 5311.081 of the Revised Code unless the
manager or managing agent holds an active real estate broker's
license or real estate salesperson's license issued under Chapter
4735. of the Revised Code.
(B) A real estate salesperson may not perform the duties of a
manager or managing agent pursuant to division (A) of this section
unless the salesperson is affiliated with a broker who has
executed a management agreement with the unit owner's association.
Sec. 5311.22. (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.
(E) Unless otherwise provided in the declaration or bylaws,
votes allocated to a unit may be cast by a directed or undirected
proxy executed by a unit owner, provided that a person shall not
cast votes representing more than fifteen per cent of the votes in
the unit owners association pursuant to undirected proxies.
Sec. 5311.28. (A) There is hereby created the Ohio
condominium dispute resolution commission, consisting of the
following seven members, who shall be appointed by the governor,
with the advice and consent of the senate:
(1) Two members shall be unit owners and members of a unit
owners association, but not members of a unit owners association
board of directors. One of these members shall be from a small
association and one shall be from a large association.
(2) Two members shall be members of a unit association board
of directors. One of these members shall be from a small
association and one shall be from a large association.
(3) One member shall be a certified public accountant.
(4) One member shall be a real estate attorney.
(5) One member shall represent the public and be a
noncondominium property homeowner.
(B)(1) Within a reasonable time, the governor shall make
initial appointments to the commission. The initial members of the
commission shall serve staggered terms ending on the thirtieth day
of June one, two, three, four, or five years after appointment, as
determined by the governor. Thereafter, terms of office shall be
for five years, commencing on the first day of July and ending on
the thirtieth day of June. Each member shall hold office from the
date of appointment until the end of the term for which appointed.
No more than four members shall be members of any one political
party. No member of the Ohio condominium dispute resolution
commission shall serve concurrently as a member of the Ohio real
estate commission or the Ohio real estate appraiser board. Each
member, before entering upon the duties of office, shall subscribe
to and file with the secretary of state the constitutional oath of
office. The governor may remove any member for misconduct, neglect
of duty, incapacity, or malfeasance in accordance with section
3.04 of the Revised Code. All vacancies that occur shall be filled
in the manner prescribed for the regular appointments to the Ohio
condominium dispute resolution commission. Any member appointed to
fill a vacancy occurring prior to the expiration of the term for
which the member's predecessor was appointed shall hold office for
the remainder of such term. Any member shall continue in office
subsequent to the expiration date of the member's term until the
member's successor takes office, or until a period of sixty days
has elapsed, whichever occurs first. No member shall hold office
for more than two consecutive full terms.
(2) Annually, upon the qualification of the member appointed
in such year, the Ohio condominium dispute resolution commission
shall organize by selecting from its members a chairperson and
vice-chairperson and shall do all things necessary and proper to
carry out and enforce this chapter.
The Ohio condominium dispute resolution commission may do all
of the following:
(d) Compel the production of books, papers, records, and
other forms of evidence;
(e) Fix the time and place for hearing any matter related to
compliance with sections 5311.08, 5311.081, 5311.083, 5311.09, and
5311.091 of the Revised Code.
(3) The Ohio condominium dispute resolution commission shall
meet at least once each calendar quarter to conduct the business
of the commission.
(4) A majority of the members of the commission shall
constitute a quorum.
(5) Members of the Ohio condominium dispute resolution
commission shall receive no compensation but shall be reimbursed
for their actual and necessary expenses incurred in the discharge
of their duties.
(C) The division of real estate and professional licensing in
the department of commerce shall provide the Ohio condominium
dispute resolution commission with meeting space, staff services,
and other technical assistance required by the commission in
carrying out its duties pursuant to sections 5311.29 to 5311.33 of
the Revised Code.
(D) As used in this section:
(1) "Small association" means a condominium development with
fifty units or less;
(2) "Large association" means a condominium development with
more than fifty units.
Sec. 5311.29. The Ohio condominium dispute resolution
commission or the superintendent of real estate and professional
licensing may compel, by order or subpoena, the production of any
book, paper, or document in relation to any matter over which the
commission or superintendent has jurisdiction and which is the
subject of inquiry and investigation by the commission or
superintendent. The commission or the superintendent also may
compel, by order or subpoena, the attendance of witnesses to
testify in a hearing held pursuant to section 5311.32 of the
Revised Code. For those purposes, the commission or superintendent
shall have the same power as judges of courts of common pleas to
administer oaths, compel the attendance of witnesses, and compel
the production of any book, paper, or document. Service of the
subpoena may be made by sheriffs or constables, or by certified
mail, return receipt requested, and the subpoena shall be deemed
served on the date delivery is made or the date the person refused
to accept delivery. Witnesses shall receive, after their
appearance before the commission or superintendent, the fees and
mileage provided for under section 119.094 of the Revised Code. If
two or more witnesses travel together in the same vehicle, the
mileage fee shall be paid to only one of those witnesses, but the
witnesses may agree to divide the fee among themselves in any
manner.
In addition to the powers granted to the commission and
superintendent under this section, in case any person fails to
file any statement or report, obey any subpoena, give testimony,
answer questions, or produce any books, records, or papers as
required by the commission or superintendent under this chapter,
the court of common pleas of any county in the state, upon
application made to it by the commission or superintendent setting
forth such failure, may make an order awarding process of subpoena
or subpoena duces tecum for the person to appear and testify
before the commission or superintendent, and may order any person
to give testimony and answer questions, and to produce books,
records, or papers, as required by the commission or
superintendent. Upon the filing of such order in the office of the
clerk of the court of common pleas, the clerk, under the seal of
the court, shall issue process of subpoena for the person to
appear before the commission or superintendent at a time and place
named in the subpoena, and each day thereafter until the
examination of such person is completed. The subpoena may contain
a direction that the witness bring with the witness to the
examination any books, records, or papers mentioned in the
subpoena. The clerk shall also issue, under the seal of the court,
such other orders, in reference to the examination, appearance,
and production of books, records, or papers, as the court directs.
If any person so summoned by subpoena fails to obey the subpoena,
to give testimony, to answer questions as required, or to obey an
order of the court, the court, on motion supported by proof, may
order an attachment for contempt to be issued against the person
charged with disobedience of any order or injunction issued by the
court under this chapter. If the person is brought before the
court by virtue of the attachment, and if upon a hearing the
disobedience appears, the court may order the offender to be
committed and kept in close custody.
Sec. 5311.30. (A) The Ohio condominium dispute resolution
commission is a part of the department of commerce for
administrative purposes. The director of commerce is ex officio
the executive officer of the commission, or the director may
appoint the superintendent of real estate and professional
licensing to act as executive officer of the commission.
(B) The commission or the superintendent, except as otherwise
provided, shall do all of the following:
(1) Hear and investigate all of the following:
(a) General complaints and disputes between a unit owner and
a unit owners association or board of directors;
(b) Requests by a majority of unit owners in a unit owners
association or upon a motion of the board of directors of a unit
owners association to audit the elections of the unit owners
association;
(c) Disputes over access to records of a unit owners
association or board of directors.
(2) Establish and maintain an investigation and audit section
to investigate complaints and conduct inspections, audits, and
other inquiries as in the judgment of the commission or
superintendent are appropriate. The investigators or auditors have
the right to review and audit the records described in division
(A)(1) of section 5311.09 of the Revised Code during normal
business hours.
(C) The commission or superintendent may, in connection with
investigations and audits under division (B) of this section,
subpoena witnesses as provided in section 5311.29 of the Revised
Code.
(D) All information that is obtained by the commission,
superintendent, investigators, and auditors performing
investigations or conducting inspections, audits, and other
inquiries pursuant to division (B) of this section and all
reports, documents, and other work products that arise from that
information and that are prepared by the commission,
investigators, auditors, or other personnel of the department,
shall be held in confidence by the superintendent or commission,
the investigators and auditors, and other personnel of the
department.
Sec. 5311.31. The Ohio condominium dispute resolution
commission shall perform all of the following duties:
(A) Adopt, amend, and rescind such rules in accordance with
Chapter 119. of the Revised Code as are necessary in carrying out
sections 5311.29 to 5311.33 of the Revised Code, including rules
relative to the following:
(1) Transacting the commission's business and managing its
affairs;
(2) Establishing registration and renewal fees pursuant to
section 5311.083 of the Revised Code;
(3) Establishing procedures for receiving, reviewing, and
responding to complaints filed pursuant to section 5311.32 of the
Revised Code;
(4) Conducting investigations in response to complaints filed
pursuant to division (A) of section 5311.32 of the Revised Code;
(5) Auditing elections pursuant to division (B) of section
5311.30 of the Revised Code or as part of an investigation in
response to complaints filed pursuant to division (A) of section
5311.32 of the Revised Code;
(6) Conducting audits pursuant to division (B) of section
5311.30 of the Revised Code;
(7) Resolving complaints by using informal techniques of
mediation, conciliation, and persuasion, including requiring the
parties involved in a complaint to be given prompt notice of any
offers to resolve disputes and responses thereto;
(8) Advising all parties making a complaint, or who are the
subject of a complaint, of any recommendations or findings of fact
made by the commission with respect to the complaint;
(9) Requesting the party who has filed a complaint or is the
subject of a complaint, and is affected by recommendations of the
commission made with respect to the complaint, to notify the
commission within a time specified by the commission of any action
the party has taken in response to the commission's
recommendations;
(10) Conducting nonpublic hearings and maintaining commission
proceedings and records as confidential, notwithstanding sections
121.22 and 149.43 of the Revised Code when the commission
determines that the nature of the complaints merits that action;
(11) Determining the method to be used in serving notices as
required by section 5311.32 of the Revised Code.
(B) Publicize information concerning the existence and duties
of the commission and the procedure for filing complaints pursuant
to section 5311.32 of the Revised Code;
(C) Conduct hearings on complaints pursuant to section
5311.32 of the Revised Code;
(D) Submit at least annually by the thirty-first day of March
a report on the commission's activities of the immediately
preceding calendar year to the governor and the majority and
minority leaders of the senate and house of representatives. The
report shall indicate the total number of complaints received,
initiated, and investigated under sections 5311.32 and 5311.33 of
the Revised Code; the total number of complaints for which
hearings were held; and the total number of referrals made to
prosecuting attorneys pursuant to section 5311.33 of the Revised
Code.
(E) Review, at least once each year, all actions taken by the
prosecuting attorneys in response to referrals made to them by the
commission or the superintendent of real estate and professional
licensing. The commission shall include in the report required in
division (D) of this section information regarding the nature of
the inappropriate conduct alleged in each referral and the status
or disposition made of each referral occurring during the
preceding two years.
(F) Perform all functions as are necessary in administering
and enforcing sections 5311.29 to 5311.33 of the Revised Code.
Sec. 5311.32. (A) Any person may file a complaint regarding
the activity, practice, policy, or procedure of, or regarding an
alleged violation of section 5311.08, 5311.081, 5311.09, or
5311.091 of the Revised Code by, any board of directors of a unit
owners association registered pursuant to section 5311.083 of the
Revised Code that adversely affects or may adversely affect the
interest of a unit owner. All complaints shall be in writing and
submitted to the division of real estate and professional
licensing in the department of commerce on forms provided by the
division.
(B) With respect to complaints filed pursuant to division (A)
of this section, the division shall do all of the following:
(1) Acknowledge receipt of the complaint by sending written
notice to the person who filed the complaint not more than twenty
days after receipt of the complaint;
(2) Send written notice of the complaint within seven days
after receipt of the complaint to the entity that is the subject
of the complaint;
(3) Before taking further action, allow the entity that is
the subject of a complaint thirty days after the date the division
sends notice of the complaint to respond to the division with
respect to the complaint.
(C) The Ohio condominium dispute resolution commission shall
hear each complaint filed pursuant to division (A) of this section
within one hundred eighty days after its filing, unless it has
been resolved by the parties to the complaint.
Sec. 5311.33. (A) The superintendent of real estate and
professional licensing or the Ohio condominium dispute resolution
commission, on the superintendent's or the commission's own motion
or as a result of a complaint received pursuant to section 5311.32
of the Revised Code and with good cause shown, shall investigate
or cause to be investigated alleged violations of sections
5311.08, 5311.081, 5311.09, and 5311.091 of the Revised Code. If
the commission or the superintendent of real estate and
professional licensing believes that a violation has occurred, the
commission or superintendent shall do all of the following:
(1) Request the prosecuting attorney of the county in which
the alleged violation occurred to initiate such proceedings as are
appropriate;
(2) In accordance with section 5311.30 of the Revised Code,
audit the records of the condominium association named in the
complaint to ensure compliance with this chapter.
(B) The commission or superintendent, at any time, may
dismiss a complaint if the commission or superintendent determines
there is not good cause shown for the complaint. If the commission
or superintendent dismisses a complaint, the commission or
superintendent shall notify the person who filed the complaint
within twenty days of reaching the commission's or
superintendent's decision and identify the reason why the
complaint was dismissed.
(C) When necessary for the division of real estate and
professional licensing in the department of commerce to perform
the duties required by sections 5311.32 and 5311.33 of the Revised
Code, the superintendent may issue subpoenas and compel the
production of books, papers, records, and other forms of evidence.
Sec. 5311.99. (A) Whoever violates section 5311.083 of the
Revised Code is guilty of a misdemeanor of the third degree.
(B) Whoever violates section 5311.08, 5311.09, or 5311.091 of
the Revised Code is guilty of a misdemeanor of the first degree.
(C) Whoever violates section 5311.081 of the Revised Code is
guilty of a felony of the fifth degree, and, notwithstanding
section 2929.18 of the Revised Code, the court may impose upon the
offender an additional fine of not more than two thousand five
hundred dollars.
Section 2. That existing sections 5311.01, 5311.08,
5311.081, 5211.09, 5311.091, and 5311.22 of the Revised Code are
hereby repealed.
Section 3. Sections 5311.082, 5311.083, and 5311.15 of the
Revised Code, as enacted by this act, shall take effect one
hundred twenty days after the effective date of this act. During
that period, the Superintendent of Real Estate and Professional
Licensing shall collect and process applications for unit owners
association registration and shall issue certificates of
registration. During that time, no association is required to have
a certificate of registration.
|
|