2021 Ohio 3783
Ohio Ct. App.2021Background
- 1993 Original Declaration for New California Woods recorded; it prohibited temporary structures, trailers, mobile homes, sheds, garages, barns, and other outbuildings on the property.
- A Phase IX Amendment (1998) subjected lots 105–116 (including Lot 108) to the Original Declaration.
- A 2006 Amended and Restated Declaration was recorded to amend and restate the Original Declaration; a 2019 Amendment referenced the Restated Declaration.
- Douglas and Melissa VanBuren purchased Lot 108 in June 2017 and installed a shed the same month.
- NCWHA demanded removal in 2019, sued in December 2019 seeking injunction and removal; the trial court granted NCWHA partial summary judgment and a permanent injunction and later awarded fees; the VanBurens appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the outbuilding restriction applies to Lot 108 after the Restated Declaration / 2019 Amendment | Restated Declaration amended/replaced the Original and applies subdivision‑wide; 2019 Amendment refers owners to the Restated Declaration; recorded instruments bind Lot 108 | Restated Declaration only annexed Phases 6 and 7; 2019 Amendment "replaced" the Original so Phase IX is not subject to the restriction | The Restated Declaration amended and restated the Original and remained the controlling instrument; 2019 Amendment directed owners to the Restated Declaration; Lot 108 is subject to the outbuilding prohibition; summary judgment proper |
| Whether the instruments complied with Ohio’s Planned Community Law (bylaws recording) | Bylaws were recorded with the Original and Restated Declarations and Phase IX Amendment incorporated the Original by reference | Bylaws were not recorded with the Phase IX Amendment and were not (re)recorded within 180 days after R.C. 5312.02’s effective date | The bylaws already were of record with the Original/Restated Declarations; Phase IX incorporated them by reference; the 180‑day rule did not invalidate those prior recordings |
| Challenge to NCWHA expert affidavit (Owens‑Ruff) | Expert reviewed recorded documents and opined the restrictions applied | Affidavit unreliable because expert did not review the 2019 Amendment | Court independently reviewed certified recorded instruments (including the 2019 Amendment), reached the same conclusion; affidavit defect was immaterial |
| Whether plat map omissions (missing page numbers) defeated constructive notice | Purchaser had constructive notice from recorded chain of title and deed reciting prior instruments | Plat blanks meant insufficient express notice to bind buyers (citing DeRosa) | Blank plat entries did not negate constructive notice because the restrictions appeared in recorded instruments in the chain of title and the deed referenced prior recorded restrictions |
Key Cases Cited
- Canton v. State, 95 Ohio St.3d 149 (Ohio 2002) (definition and nature of restrictive covenants)
- Spring Lakes, Ltd. v. O.F.M. Co., 12 Ohio St.3d 333 (Ohio 1984) (recorded restrictions in chain of title give constructive notice)
- Emrick v. Multicon Builders, 57 Ohio St.3d 107 (Ohio 1991) (purchaser bound by encumbrance if actual or constructive notice)
- DeRosa v. Parker, 197 Ohio App.3d 332 (7th Dist. 2011) (plat map omissions may affect express notice)
- Byrd v. Smith, 110 Ohio St.3d 24 (Ohio 2006) (nonmoving party must set forth specific facts to defeat summary judgment)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (Ohio 1992) (summary judgment should be awarded with caution)