Semachko v. Hopko

301 N.E.2d 560, 35 Ohio App. 2d 205, 64 Ohio Op. 2d 316, 1973 Ohio App. LEXIS 856
CourtOhio Court of Appeals
DecidedAugust 23, 1973
Docket32262
StatusPublished
Cited by14 cases

This text of 301 N.E.2d 560 (Semachko v. Hopko) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Semachko v. Hopko, 301 N.E.2d 560, 35 Ohio App. 2d 205, 64 Ohio Op. 2d 316, 1973 Ohio App. LEXIS 856 (Ohio Ct. App. 1973).

Opinion

Krenzler, J.

Plaintiffs filed a complaint in the Common Pleas Court of Cuyahoga County on December 14, 1970 for declaratory judgment, injunction and other relief, alleging that they are the owners of a certain parcel of realty situated in the City of Parma, and that the defendants also are the owners of certain property in the same subdivision.

Plaintiffs alleged that all of the lots in the subdivisions have the same deed restrictions that run with the *207 land, to-wit: “* * * that no bnilding shall be erected on the lot nearer than 35 feet to the sidewalk line and to cost at least $1,200, and the bnilding will be for private residences only. * *

Plaintiffs alleged that the defendants desire to use their property for funeral home purposes and have prevailed upon Council of the City of Parma to change its zoning, and that the ordinance rezoning the defendants’ property is unconstitutional and void as spot zoning and is arbitrary and unreasonable and has no substantial relation to public health, safety, morals or general welfare; and that if the defendants are permitted to construct the funeral home, it will be in direct violation of the deed restrictions.

The plaintiffs asked the court to declare the deed restriction valid and enforceable and to declare zoning ordinance No. 346-69 unconstitutional, null and void; and that the defendants be permanently restrained and enjoined from using their lot for any purpose other than private residential purposes.

Defendants Hopko filed an answer denying that there is a restriction on the use of their property based on the Ohio Marketable Title Act, R. C. 5301.47 to R. C. 5301.56, inclusive. Defendants admitted that the Council of the City of Parma rezoned their property from a B-l to a C-3 classification but denied that construction of a funeral home on their property would result in damage to the plaintiffs.

Defendant, City of Parma, filed an answer which need not be considered in dealing with this appeal.

The trial court granted a temporary injunction on July 8, 1971 against the defendants from proceeding to build the funeral home during the pendency of the action, and the case was advanced for trial.

The case was tried on July 10, 1972 and the trial court entered judgment for the defendants on September 5, 1972.

In its judgment entry the trial court found that the plaintiffs are the owners of certain residential property on Keystone Road in Parma and that the defendants purchased five sublots on the corner of Keystone and Broad-view Roads with the intention of constructing a mortuary thereon. The lots of all the parties are in the same subdi *208 vision upon which a restrictive covenant was placed in 1913 and said covenant restricts the subdivision to residential purposes only.

The trial court found that Broadview Boad is a four lane main city artery with heavy automobile, bus and truck traffic; and that within one mile in either direction of the subject property and located on Broadview Boad there are many business establishments and several churches and schools as well as numerous residences. The trial court found that the City of Parma rezoned the subject property for office building use.

," The trial court found that the nature of Broadview Boad has changed substantially in recent years and the changes , have been so drastic that the intent of the deed restriction to preserve the residential nature of the locality has been nullified. The district is business and not residential in nature.

The trial court concluded that the substantial changes on Broadview Boad have so altered the fundamental nature of the locality that the restrictive covenant of 1913 is no longer binding. The trial court denied the plaintiffs’ request to enjoin defendants from proceeding with the proposed construction on the subject property and judgment was entered for the defendants.

It is noted that the trial court did not rule on the issue of whether the use restriction was still valid under the Marketable Title Act.

The plaintiffs have taken this appeal and have six assignments of error. •

1. The Court erred in finding the nature of the locality bas- so drastically changed as to render the intent of the restriction to preserve the residential nature of the district has been nullified.

,2. The Court erred in finding that the nature of Broad-view Boad has changed substantially in recent years.

3. Tfie Court erred in finding that the rezoning of the district of. the municipality is evidence of the change in character of the neighborhood.

4,. The Court erred in considering the character of the *209 adjoining land as much as a mile away in finding .that the true intent and spirit of the restrictions inapplicable.

5. The Court erred in adjudging that there were sub-, stantial changes on Broadview Road so as to destroy their restrictive covenant of 1913.

6. The Court’s findings and conclusions are against the manifest weight of the evidence and contrary to law. •.

We will consider two principal issues in this-appeal: (1) whether the restriction in the use of the subject property for private residence purposes only is valid.or.was extinguished under the Ohio Marketable Title Act, R. ,C. 5301.47 through R. C. 5301.56; (2) whether there have been, substantial and drastic changes in the neighborhood which would nullify the deed restrictions.

The Ohio Marketable Title Act became effective September 29, 1961 and is to be liberally construed. The purpose of this act is to simplify and facilitate land title transactions by allowing persons to rely on a record chain of title as described in R. C. 5301.48, and subject to the limitations of R. C. 5301.49. See R. C. 5301.55. . ■. .

Because of the technical nature of the Act and its- necessary application to the issues in this case, we will briefly review its pertinent and applicable provisions'. ■' ;

Any person having legal capacity to own land in this State, who has an unbroken chain of title of record, to any interest in land for forty years or more, has a marketable record title to such interest. A person has such an unbroken chain of title when the official public records disclose a con-, veyance or other title transaction of record of not less than forty years at the time the marketability is to be determ-: ined. The conveyance or other title transaction must pur-, port to create such interest, either in the person claiming it or in some other person from whom, by one or more com veyances or other title transactions of record, such purported interest has become vested. However, nothing must appear of record purporting to divest such claimant of such purported interest. R. C. 5301.48.

“Marketable record title” means a title of record, which operates to extinguish such interests and claims exis^ *210 ling prior to the effective date of the root of title. R. C. 5301.47 (A). Subject to certain exceptions stated in R. C.

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Cite This Page — Counsel Stack

Bluebook (online)
301 N.E.2d 560, 35 Ohio App. 2d 205, 64 Ohio Op. 2d 316, 1973 Ohio App. LEXIS 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/semachko-v-hopko-ohioctapp-1973.