[Cite as Cumberland Trail Homeowners Assn., Inc. v. Bush, 2011-Ohio-6041.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
CUMBERLAND TRAIL HOMEOWNERS JUDGES: ASSOCIATION, INC. Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Plaintiff-Appellee Hon. John W. Wise, J.
-vs- Case No. 11 CA 40
PETER F. BUSH, et al. OPINION Defendants-Appellants
CHARACTER OF PROCEEDING: Civil Appeal from the Municipal Court, Case No. 10 CVF 01457
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: November 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellants
ELIZABETH J. WATTERS STEVEN W. MERSHON CHESTER, WILLCOX & SAXBE MERSHON AND PREDIERI 65 East State Street, Suite 1000 128 South Main Street, Suite 100 Columbus, Ohio 43215 Granville, Ohio 43025 Licking County, Case No. 11 CA 40 2
Wise, J.
{¶1} Defendants-Appellants Peter and Sharon Bush appeal the decision of the
Licking County Municipal Court, which granted a monetary judgment against them in
favor of Plaintiff-Appellee Cumberland Trail Homeowners Association, Inc. in an action
seeking recovery of association fees and collection costs. The relevant facts leading to
this appeal are as follows.
{¶2} In 2004, appellants became the owners of Lot #199 in the Cumberland
Trail Subdivision, Etna Township, with a present street address on Arrow Wood Court.
This property is subject to a 1998 declaration of covenants, conditions, and restrictions
which was recorded in Licking County in 1998. This declaration was enacted by
Columbia Road, Ltd., the developer of the Cumberland Trail Subdivision, who was
designated the "Declarant'' in the original declaration. The covenants, among other
things, limited the use of the lots and restricted the location and types of structures that
could be built. However, the restrictions therein did not provide for the existence of a
"homeowners association" and did not levy assessments against any lot owners.
{¶3} The original Declaration contains the following pertinent provision in Article
II:
{¶4} “(A) TERM: These covenants are to run with the Lots and shall be binding
on all Owners of the above-described real estate until January 1, 2037, after which
time said covenants shall be automatically extended for successive periods of ten (10)
years, unless an instrument signed by a majority of the Lot Owners is recorded,
agreeing to change said covenants in whole or in part.” Licking County, Case No. 11 CA 40 3
{¶5} In 2007, some of the owners of property in Cumberland Trail Subdivision,
relying on the aforesaid provision, sought to amend the original subdivision covenants
to create a homeowners association and to impose assessments on all homeowners in
the subdivision. For that purpose, an “Amendment to Declaration of Covenants,
Conditions and Restrictions for Cumberland Trail Subdivision Sections 1, 2, 3, 4, 4
(Part 2) and 5” was recorded on September 5, 2007, approximately three years after
appellants purchased their home. Appellants took the position that they were not a
party to the amendment and have not consented to the terms of the amendment.
{¶6} Appellee Association thereafter billed appellants for an initial reserve fee
and dues. Subsequently, the Association billed appellants for dues for 2008, 2009 (in
the amount of $95 each) and 2010 (in the amount of $105). These amounts were not
paid.
{¶7} Appellee Association accordingly filed an action to recover fees in the
Licking County Municipal Court. Appellants filed an answer and claimed that they did
not owe the assessments because the purported amendment was ineffective. They
also contended that the ownership of their home could not be subjected to additional
restrictions that are not reasonably related to the restrictions that applied when they
acquired the property. They further maintained that the restrictions could not be
amended to require mandatory membership in a homeowners association, or to
impose assessments, where there are no commonly owned assets to protect or
improve.
{¶8} The trial court conducted a hearing on November 4, 2010, at the close of
which the court asked for the submission of post-trial briefs and findings of fact. On Licking County, Case No. 11 CA 40 4
March 2, 2011, the trial court issued a judgment entry in which it held, inter alia, that
"the documents filed of record with respect to the Cumberland Trail Homeowners
Association gives that association legitimacy and also the power to assess property
owners for dues and to enforce those assessments.” Judgment Entry at 2. The trial
court further granted judgment to Appellee Association for unpaid dues in the amount
of $1,128.29, plus $376.10 for appellee’s attorney fees.
{¶9} On April 1, 2011, appellants filed a notice of appeal. They herein raise the
following sole Assignment of Error:
{¶10} “I. THE TRIAL COURT ERRED IN ENTERING ITS JUDGMENT ENTRY
AGAINST THE DEFENDANT[S]-APPELLANTS BECAUSE THE TRIAL COURT
ERRED IN ITS INTERPRETATION OF THE PURPORTED AMENDMENT TO THE
SUBDIVISION’S RESTRICTIVE COVENANTS AND IN ITS APPLICATION OF THOSE
COVENANTS TO DEFENDANTS-APPELLANTS’ HOME.”
I.
{¶11} In their sole Assignment of Error, appellants argue the trial court erred in
holding them responsible for annual assessments to the homeowners association via
the 2007 amendments to the original restrictive covenants. We agree.
{¶12} Restrictive covenants in deeds are generally interpreted by those rules
used to interpret contracts. McBride v. Behrman (1971), 28 Ohio Misc. 47, 272 N.E.2d
181, 57 O.O.2d 77 (additional citations omitted). In the case of contracts, deeds or
other written instruments, the construction of the writing is a matter of law which is
reviewed de novo. See Martin v. Lake Mohawk Property Owner's Ass'n., Carroll
App.No. 04 CA 815, 2005-Ohio-7062, ¶ 23, citing Long Beach Assn., Inc. v. Jones Licking County, Case No. 11 CA 40 5
(1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208. Under a de novo review, an appellate
court may interpret the language of the contract substituting its interpretation for that of
the trial court. Witte v. Protek Ltd., Stark App.No. 2009CA00230, 2010-Ohio-1193, ¶ 6,
citing Children's Medical Center v. Ward (1993), 87 Ohio App.3d 504, 622 N.E.2d 692.
{¶13} Ohio’s legal system “does not favor restrictions on the use of property.”
Driscoll v. Austintown Assoc. (1975), 42 Ohio St.3d 263, 276. “The general rule, with
respect to construing agreements restricting the use of real estate, is that such
agreements are strictly construed against limitations upon such use, and that all doubts
should be resolved against a possible construction thereof which would increase the
restriction upon the use of such real estate.” Bove v. Geibel (1959), 169 Ohio St. 325,
159 N.E.2d 425, paragraph one of the syllabus. Furthermore, “[i]f the covenant's
language is indefinite, doubtful, and capable of contradictory interpretations, the court
must construe the covenant in favor of the free use of land.” Farrell v. Deuble, 175
Ohio App.3d 646, 888 N.E.2d 514, 2008-Ohio-1124, ¶ 11, citing Houk v. Ross (1973),
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[Cite as Cumberland Trail Homeowners Assn., Inc. v. Bush, 2011-Ohio-6041.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
CUMBERLAND TRAIL HOMEOWNERS JUDGES: ASSOCIATION, INC. Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Plaintiff-Appellee Hon. John W. Wise, J.
-vs- Case No. 11 CA 40
PETER F. BUSH, et al. OPINION Defendants-Appellants
CHARACTER OF PROCEEDING: Civil Appeal from the Municipal Court, Case No. 10 CVF 01457
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: November 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellants
ELIZABETH J. WATTERS STEVEN W. MERSHON CHESTER, WILLCOX & SAXBE MERSHON AND PREDIERI 65 East State Street, Suite 1000 128 South Main Street, Suite 100 Columbus, Ohio 43215 Granville, Ohio 43025 Licking County, Case No. 11 CA 40 2
Wise, J.
{¶1} Defendants-Appellants Peter and Sharon Bush appeal the decision of the
Licking County Municipal Court, which granted a monetary judgment against them in
favor of Plaintiff-Appellee Cumberland Trail Homeowners Association, Inc. in an action
seeking recovery of association fees and collection costs. The relevant facts leading to
this appeal are as follows.
{¶2} In 2004, appellants became the owners of Lot #199 in the Cumberland
Trail Subdivision, Etna Township, with a present street address on Arrow Wood Court.
This property is subject to a 1998 declaration of covenants, conditions, and restrictions
which was recorded in Licking County in 1998. This declaration was enacted by
Columbia Road, Ltd., the developer of the Cumberland Trail Subdivision, who was
designated the "Declarant'' in the original declaration. The covenants, among other
things, limited the use of the lots and restricted the location and types of structures that
could be built. However, the restrictions therein did not provide for the existence of a
"homeowners association" and did not levy assessments against any lot owners.
{¶3} The original Declaration contains the following pertinent provision in Article
II:
{¶4} “(A) TERM: These covenants are to run with the Lots and shall be binding
on all Owners of the above-described real estate until January 1, 2037, after which
time said covenants shall be automatically extended for successive periods of ten (10)
years, unless an instrument signed by a majority of the Lot Owners is recorded,
agreeing to change said covenants in whole or in part.” Licking County, Case No. 11 CA 40 3
{¶5} In 2007, some of the owners of property in Cumberland Trail Subdivision,
relying on the aforesaid provision, sought to amend the original subdivision covenants
to create a homeowners association and to impose assessments on all homeowners in
the subdivision. For that purpose, an “Amendment to Declaration of Covenants,
Conditions and Restrictions for Cumberland Trail Subdivision Sections 1, 2, 3, 4, 4
(Part 2) and 5” was recorded on September 5, 2007, approximately three years after
appellants purchased their home. Appellants took the position that they were not a
party to the amendment and have not consented to the terms of the amendment.
{¶6} Appellee Association thereafter billed appellants for an initial reserve fee
and dues. Subsequently, the Association billed appellants for dues for 2008, 2009 (in
the amount of $95 each) and 2010 (in the amount of $105). These amounts were not
paid.
{¶7} Appellee Association accordingly filed an action to recover fees in the
Licking County Municipal Court. Appellants filed an answer and claimed that they did
not owe the assessments because the purported amendment was ineffective. They
also contended that the ownership of their home could not be subjected to additional
restrictions that are not reasonably related to the restrictions that applied when they
acquired the property. They further maintained that the restrictions could not be
amended to require mandatory membership in a homeowners association, or to
impose assessments, where there are no commonly owned assets to protect or
improve.
{¶8} The trial court conducted a hearing on November 4, 2010, at the close of
which the court asked for the submission of post-trial briefs and findings of fact. On Licking County, Case No. 11 CA 40 4
March 2, 2011, the trial court issued a judgment entry in which it held, inter alia, that
"the documents filed of record with respect to the Cumberland Trail Homeowners
Association gives that association legitimacy and also the power to assess property
owners for dues and to enforce those assessments.” Judgment Entry at 2. The trial
court further granted judgment to Appellee Association for unpaid dues in the amount
of $1,128.29, plus $376.10 for appellee’s attorney fees.
{¶9} On April 1, 2011, appellants filed a notice of appeal. They herein raise the
following sole Assignment of Error:
{¶10} “I. THE TRIAL COURT ERRED IN ENTERING ITS JUDGMENT ENTRY
AGAINST THE DEFENDANT[S]-APPELLANTS BECAUSE THE TRIAL COURT
ERRED IN ITS INTERPRETATION OF THE PURPORTED AMENDMENT TO THE
SUBDIVISION’S RESTRICTIVE COVENANTS AND IN ITS APPLICATION OF THOSE
COVENANTS TO DEFENDANTS-APPELLANTS’ HOME.”
I.
{¶11} In their sole Assignment of Error, appellants argue the trial court erred in
holding them responsible for annual assessments to the homeowners association via
the 2007 amendments to the original restrictive covenants. We agree.
{¶12} Restrictive covenants in deeds are generally interpreted by those rules
used to interpret contracts. McBride v. Behrman (1971), 28 Ohio Misc. 47, 272 N.E.2d
181, 57 O.O.2d 77 (additional citations omitted). In the case of contracts, deeds or
other written instruments, the construction of the writing is a matter of law which is
reviewed de novo. See Martin v. Lake Mohawk Property Owner's Ass'n., Carroll
App.No. 04 CA 815, 2005-Ohio-7062, ¶ 23, citing Long Beach Assn., Inc. v. Jones Licking County, Case No. 11 CA 40 5
(1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208. Under a de novo review, an appellate
court may interpret the language of the contract substituting its interpretation for that of
the trial court. Witte v. Protek Ltd., Stark App.No. 2009CA00230, 2010-Ohio-1193, ¶ 6,
citing Children's Medical Center v. Ward (1993), 87 Ohio App.3d 504, 622 N.E.2d 692.
{¶13} Ohio’s legal system “does not favor restrictions on the use of property.”
Driscoll v. Austintown Assoc. (1975), 42 Ohio St.3d 263, 276. “The general rule, with
respect to construing agreements restricting the use of real estate, is that such
agreements are strictly construed against limitations upon such use, and that all doubts
should be resolved against a possible construction thereof which would increase the
restriction upon the use of such real estate.” Bove v. Geibel (1959), 169 Ohio St. 325,
159 N.E.2d 425, paragraph one of the syllabus. Furthermore, “[i]f the covenant's
language is indefinite, doubtful, and capable of contradictory interpretations, the court
must construe the covenant in favor of the free use of land.” Farrell v. Deuble, 175
Ohio App.3d 646, 888 N.E.2d 514, 2008-Ohio-1124, ¶ 11, citing Houk v. Ross (1973),
34 Ohio St.2d 77, 63 O.O.2d 119, 296 N.E.2d 266, paragraph two of the syllabus.
{¶14} Appellants argue that the original 1998 restrictive covenants, by their
express language, cannot be amended until the year 2037. They further argue, in the
alternative, that the 2007 amendment did not propose to simply amend the language of
the existing covenants -- i.e., "to change said covenants in whole or in part" - as set
forth in the original Declaration; instead, the Amendment purported to "add" new
obligations to the subdivision covenants.
{¶15} The key language of Article II(A) of the original covenants states that they
“shall be binding on all Owners of the above-described real estate until January 1, Licking County, Case No. 11 CA 40 6
2037, after which time said covenants shall be automatically extended for successive
periods of ten (10) years, unless an instrument signed by a majority of the Lot Owners
is recorded, agreeing to change said covenants ***.”
{¶16} The primary question before us is whether or not the above phrase
beginning with “unless” expresses an intention by the drafters that any changes to the
covenants are permitted only “after which time,” i.e., January 1, 2037. Appellant directs
us to the “last-antecedent rule” of contract interpretation, which states that referential
and qualifying words and phrases, where no contrary intention appears, refer solely to
the last antecedent. See Wohl v. Swinney, 118 Ohio St.3d 277, 279, 2008-Ohio-2334.
{¶17} Upon review, we hold Article II(A), when strictly construed and subjected
to the last-antecedent rule, does not permit owner-initiated changes to the 1998
restrictive covenants pertaining to the Cumberland Subdivision prior to the January 1,
2037 limitation stated therein. Accordingly, the trial court erred as a matter of law in
applying the homeowners association restrictions and fees to appellants. Licking County, Case No. 11 CA 40 7
{¶18} Appellants’ sole Assignment of Error is sustained.
{¶19} For the reasons stated in the foregoing opinion, the judgment of the
Municipal Court of Licking County, Ohio, is hereby reversed.
By: Wise, J.
Farmer, J. concurs.
Hoffman, P. J., concurs separately.
___________________________________
JUDGES JWW/d 1018 Licking County, Case No. 11 CA 40 8
Hoffman, P.J., concurring
(¶20) I do not disagree with the majority’s application of the “last-antecedent
rule” to the restrictive covenant in the case sub judice. However, I would go further and
find the attempted change constituted more than a mere amendment. It attempted to
add new obligations to the subdivision covenants. I would find the purported
“amendment” unenforceable against Appellants also for this reason.
________________________________ HON. WILLIAM B. HOFFMAN Licking County, Case No. 11 CA 40 9
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
CUMBERLAND TRAIL HOMEOWNERS : ASSOCIATION, INC. : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : PETER F. BUSH, et al. : : Defendants-Appellants : Case No. 11 CA 40
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Licking County, Ohio, is reversed.
Costs assessed to appellee.
JUDGES