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Amendments MUST be Recorded to be Valid

Our Firm was recently hired by an association in Westerville, and another inDayton, Ohio. Both associations were under the impression that they had enacted valid and legally binding amendments to their Declarations. TheWesterville association thought they enacted a “no-leasing” amendment. TheDayton association was under the impression that they had properly reduced their quorum requirement of their annual meeting to “those Owners present in person or by proxy.”

Both associations were surprised to learn their amendments were not valid or legally binding because the associations never properly recorded the amendments with a filing at their local County Records Office.

Ohio Revised Code Section 5311 clearly mandates that amendments must be recorded to be valid. Community association boards would be wise to be aware of the two step process to be followed to enact a valid and legally binding amendment. An overview of the two steps are as follows:

STEP 1

A. Decide on topic needing amendment

B. Cover letter to all owners explaining reasons for amendment (Kaman & Cusimano provides)

C. Consent form ballot for each owner (Kaman & Cusimano provides)

D. Board reviews, approves, and distributes to owners

E. Enclosed self-addressed stamped envelope for return of consents

F. Meeting to answer questions (caution – some documents require a meeting)

G. Count percentages* to determine if required approval achieved

*Some documents establish one vote per unit/lot

H. Repeat until passed or defeated

STEP 2

A. Notify Kaman & Cusimano of percentage obtained

B. Amendment document prepared for recording by Kaman & Cusimano

C. Board executes amendment document which must be notarized

– Affidavit as to number of consents received

– Affidavit as to mortgage consents (if required)

D. Mandatory recording with County

E. Distribute copy of recorded amendment to all owners (caution – some documents require distribution by certified mail)

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