Silence in the bylaws about buried pipes protects no Ohio board
Silence in the bylaws about buried pipes protects no Ohio board
2026-09-15 · Ohio · Courts
An Ohio association declined to fix an undersized underground stormwater system that repeatedly flooded two homeowners. Its bylaws did not say whether the pipes were a common element. A jury found for the homeowners on every count, and the Second District affirmed.1
Goebel v. Colonial Lane Improvement Association, 2025-Ohio-863, C.A. No. 30148, was decided March 14, 2025 in Montgomery County.
The pipe system stepped down from 24 inches to 15 inches to 10 inches, running under a neighbour's lot. The flooding was repeated. The association declined to remediate. The Goebels sued for trespass, negligence, nuisance, breach of fiduciary duty, breach of R.C. 5312.08, breach of R.C. 5312.13 and defamation, and won on each count.
The maintenance duty
The court set out the statutory allocation:
“According to R.C. 5312.08(A), 'the owners association is responsible for reasonable maintenance, repair, and replacement of the common elements, and each owner is responsible for maintenance, repair and replacement of the owner's lot and improvements to that, including the dwelling unit and utility lines serving that dwelling unit.'” (¶ 21)
Which makes everything turn on a single classification question — and the documents did not answer it:
“The Association's bylaws are silent as to whether the underground stormwater system is a common element and whether it holds a fee in the pipes or an easement.” (¶ 23)
Silence did not resolve it in the association's favour. The court worked through the statutory definition of a common element and through the association's own history of addressing drainage going back to 1965. A pattern of the association treating the system as its own was evidence that it was.
The second statute
“R.C. 5312.13 states that an owners association shall comply with any covenant, condition, and restriction set forth in any recorded document, and with the bylaws and rules of the owners association. A violation is grounds to commence a civil action for damages, injunctive relief, or both.” (¶ 24)
R.C. 5312.13 is usually discussed as the association's enforcement tool against owners. It runs against the association in exactly the same terms.
What counts as a common element is the question underneath this case. Our Ohio governing statute page covers how Ohio law defines one.
The inventory problem
Most Ohio associations cannot say precisely what their common elements are, and the ones that can usually cannot say it about anything buried.
Above ground the question rarely arises: the clubhouse is obviously common, the unit's interior obviously is not. Underground it is genuinely unclear. Storm sewers, sanitary laterals, irrigation mains, electrical conduit, drain tile and the tie-ins between them were installed by a developer who is long gone, on plans nobody kept, and the declaration typically describes them in a phrase written before any of it was built.
That ambiguity does not protect a board. Goebel shows it doing the opposite: with the documents silent, a court looked at conduct, and the association's decades of attending to drainage became the answer. Our Ohio water conservation page covers the drainage obligations that sit alongside this one.
How conduct becomes classification
This is the part that matters. An association that has repaired something for thirty years has, in evidentiary terms, been asserting that the thing is its responsibility. Stopping does not undo that; it produces a claim.
The practical implication is uncomfortable but clear. A board that suspects a buried system may not be a common element should resolve the question deliberately — by survey, plat review, easement search and legal advice — rather than by quietly declining the next repair. Declining is the act that generates the lawsuit, and it does so from the weakest possible position.
The public-law layer running underneath
There is a second reason drainage is the wrong thing for an Ohio board to be vague about. Under Ohio EPA's municipal stormwater permit, the city must map private post-construction controls, must ensure long-term operation and maintenance agreements are in place “including after changes of ownership,” must inspect each control at least once per permit term, and must report to the state the number of enforcement actions taken “for failure to maintain.”
So a neglected basin or a failing pipe network is simultaneously an R.C. 5312.08 exposure to the owners it floods and a compliance item on a municipality's state permit. In Summit County it may also be a permanent drainage assessment already on every member's tax bill.
What to do this year
Write the inventory. A list of every component the association maintains, with a note of the document that makes it a common element — declaration section, plat note, recorded easement, or nothing. The “nothing” entries are the ones to work on.
Pull the plats and the recorded easements. For buried systems the plat notes and easement language are usually the only contemporaneous evidence, and they are at the county recorder, available to anyone.
Put the buried systems in the reserve study. Storm and sanitary infrastructure has a long life and a very large replacement cost, which is exactly the profile that gets omitted from reserve studies focused on roofs and paving. An undersized system that needs upsizing is a capital project, not a repair.
Do not decline a repair as a way of answering the ownership question. Answer it first. The association that let a known flooding problem run lost on trespass, negligence, nuisance, fiduciary duty and two statutes at once.
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