Winchell v. Burch ( 1996 )

Portage App. No. 95P0150. On review of order certifying a conflict. The court determines that a conflict exists; the parties are to brief the issue stated in the court of appeals’ Judgment Entry filed October 8,1996:

“[W]e conclude that the judgment of the Second Appellate District [in Falls Homeowners’ Assn., Inc. v. Aveyard (July 27, 1994), Montgomery App. No. 14250, unreported, 1994 WL 409626] is in conflict with this court’s judgment in Winchell. Appellants’ motion to certify the conflict is granted and we, hereby, certify the following rule of law to the Supreme Court of Ohio:

“The expansion of a condominium unit owner’s limited common area deck or other structure onto common area land does not alter the percentage of interest in the common areas and facilities of each unit and therefore does not require an amendment to the declaration unanimously approved by all unit owners affected, pursuant to R.C. 5311.04(D). Such an expansion merely changes the appearance of that part of the common area without diminishing the amount of each unit’s interest in the land, and thus, this change may be approved by the Board of Directors of the Association only.”

F.E. Sweeney, J., dissents.