## Facts

- Keith and Ollie Darby bought a condominium unit in the Nottingdale development in 1978 and paid monthly common assessments for shared services through February 1983.
- After February 1983, the Darbys stopped paying assessments while continuing to receive the services funded by those assessments.
- The Darbys asserted that the association’s board was improperly elected and that assessment increases exceeded limits in the declaration.
- The condominium declaration and by-laws required a defaulting unit owner to pay the association’s reasonable attorney’s fees incurred in collection or foreclosure actions for unpaid assessments.
- The association recorded a lien for unpaid assessments and filed a foreclosure/collection action seeking delinquent assessments, late charges, and attorney’s fees.
- The Darbys counterclaimed, challenging the validity of the assessments, lien, and the association’s authority.

## Issues

1. Whether condominium declaration/by-law provisions requiring a delinquent unit owner to pay the association’s attorney’s fees in collection or foreclosure actions are enforceable under Ohio public policy absent statutory authorization or a bad-faith finding.
2. What limitation, if any, governs the amount of attorney’s fees recoverable under such provisions.

## Decision

- The Supreme Court of Ohio reversed the court of appeals’ denial of attorney’s fees.
- The court held that attorney-fee provisions in condominium declarations and by-laws are enforceable in assessment collection and foreclosure actions.
- The court reinstated the trial court’s attorney-fee award, subject to a determination that the fees are fair, just, and reasonable based on all circumstances.

## Legal Principles

- Ohio recognizes a contractual exception to the American Rule: parties may agree that the prevailing party will recover attorney’s fees in litigation between them, including in non-commercial settings.
- Condominium declarations and by-laws function as binding contractual obligations among unit owners and the association, including agreed fee-shifting terms tied to assessment enforcement.
- Fee-shifting provisions for unpaid assessments serve legitimate interests in protecting the association’s common fund and preventing nonpaying owners from receiving shared benefits without contributing.
- Trial courts must limit any contractual attorney-fee award to an amount that is fair, just, and reasonable after full consideration of the circumstances, preventing oppressive or disproportionate awards.

## Conclusion

The Ohio Supreme Court held that condominium instruments may validly require delinquent unit owners to pay the association’s attorney’s fees for collecting unpaid assessments, and that such fees are recoverable when the association prevails so long as the trial court finds the amount fair, just, and reasonable.


Nottingdale Homeowners' Ass'n, Inc. v. Darby, 33 Ohio St. 3d 32, 514 N.E.2d 702 (Ohio 1987)