It’s That Time of Year: Be Sure to Review Your Subdivision’s Covenants Before Proceeding With Home Improvements

            For many homeowners, home improvements are not the type of activity for which they are inclined to contact their counsel.  It is likely equally true that most homeowners may reside in communities protected by a declaration of covenants, or be governed by a homeowners association.  However, the failure to appreciate the significance of the declaration of covenants and conditions, and its impact on a homeowner’s property rights can lead to unfortunate circumstances, as was recently emphasized by two Appellate decisions.

            In McCauly Court Association vs. Baker, 2015-Ohio-969, the Bakers, who were residents of a subdivision governed by a homeowner’s association and declaration of covenants, conditions, and restrictions, began to install a fence on their property without having pursued or received any permission or approval from the homeowner’s association for the fence.  The case revealed that the Bakers were advised that the construction of the fence violated the declaration, but the Bakers proceeded to construct the fence nonetheless.

         homeadThe homeowner’s association ended up filing a complaint for injunctive relief against the Bakers seeking to prohibit them from continuing with the construction, and further, to have the Court issue an order that the fence needed to be removed.  After a bench trial, the Court did just that; issuing a ruling enjoining the Bakers with continuing from the construction of the fence, and ordering that the fence be removed within thirty (30) days of the Court’s order.

            The record in the case is sparse, so it is unclear whether the fence could have been approved had the Bakers sought permission, or whether it was an improvement that was strictly prohibited by the covenants.  Either way, the case illustrates again the value of involving counsel early in real estate or construction matters so that these types of hardships are avoided.

            From the Association’s standpoint, Associations are typically placed in difficult circumstances.  If they allow residents to violate the declarations, covenants, and conditions, they run the risk of waiving the ability to enforce them, and thus undermining the structure upon which the development or association was founded.

            This last principle was highlighted by the decision in Samsa vs. Hess, 2015-Ohio-1319.  In Samsa, the Defendant purchased a lot from the Plaintiff (who was his aunt) and had been expressly advised by this aunt to review the covenants, conditions and restrictions before he acquired her property.  It was additionally established that the covenants had been available for review at closing.  Pertinent to the dispute before the Court was a restriction that precluded storage sheds to be of wood or brick, and to be no larger than 10 feet by 14 feet.  Additionally, the covenants also required that plans be submitted to an architectural control committee.

            Nonetheless, within a week after purchasing his aunts property, Hess began to construct a storage building that was going to be 30 by 40 feet.  Hess was warned by relatives and neighbors that his proposed structure would be in violation of the covenants.  Despite those warnings, Hess continued with the construction, and after placing vinyl siding on the building received a notice from Samsa’s attorney that the building did not comply with the covenants and that if necessary, an action for injunctive relief would be filed.   At that point, Hess then apparently rushed to complete the construction before Samsa could file an action for injunction, believing that if he finished construction, he could avoid the application of the covenants.

            Instead, after review, the Court found that the covenants were valid, that Hess had never submitted plans and that he failed to show that there had been substantial changes in the character of the neighborhood that would favor not enforcing the covenant.  Accordingly, the Court enforced the covenant and additionally found that despite the fact that Hess had completed the structure, it needed to be removed because he had proceeded with notice and knowledge that the structure was in violation of the covenants, and had never submitted any plans for the construction.

            From the Association’s standpoint, the case indicates the need of Associations to move to enforce their covenants so that they can counter arguments that lack of enforcement has changed the character of their community.

            Both of the foregoing cases evidence very expensive mistakes by the respective homeowners.  If you have any questions concerning your Association’s Covenants, Conditions and Restrictions, or your rights under a home improvement project, please do not hesitate to contact Michael W. Sandner at msandner@pselaw.com.

AUTHOR: Mike Sandner
msandner@pselaw.com