Daily Development for
Friday, October 2, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

SERVITUDES; RESTRICTIVE COVENANTS; ASSOCIATION DISCRETION: Homeowners association that has right to approve or disapprove particular uses on restricted property nevertheless has no right to attach further restrictions on those uses as a condition of approval.

Providence Manor Homeowners Association v. Conner, et al., 694 N.E.2d 176 (Ohio App.1997).

Association is a nonprofit corporation formed to administer and maintain the Providence Manor Subdivision in which the defendants owned homes. The Declaration had a general architectural control clause that states "[n]o building fence, wall or other structure shall be commenced, erected or maintained . . . until the plans and specifications showing the nature, kind, shape, height, materials and location . . . have been . . . approved . . . Such plans and specifications shall be reviewed as to harmony of external design and location in relation to surrounding structures and topography." A second provision stated that "[n]o basketball hoops may be erected or placed on any lot or building without prior written consent as provided in [the architectural review clause quoted above.]"

In 1993, Association granted defendants written permission to use portable basketball goals on their property with the specific restriction that the basketball goals must be stored when not in use. In 1995, Association filed suit to enforce the restrictions to its approval of the basketball goals. The trial court found that the restrictive covenants in the Declaration only gave plaintiff the authority to approve or disapprove requests, not the authority to adopt guidelines or regulations regarding a request which is granted, thereby making the requirement of storing the basketball hoops ineffectual.

On appeal: held: Affirmed. The Court of Appeals of Ohio affirmed the trial court's decision, approving of its strict interpretation of Section 5.2.18 of the Declaration which stated that "[n]o basketball hoops may be erected or placed. . .without prior written consent." The appellate court noted that this strict interpretation is consistent with the doctrine that doubts over the scope of restrictive covenants should be construed against a construction that will increase a restriction over real estate.

Comment: Even allowing for a judicial bias requiring that restrictive covenants be read narrowly (a bias that many courts have now rejected), the case is wrongly decided. The approval scheme expressly contemplated that the "nature, kind, shape, height, materials and location" of a proposed architectural change were subject to approval, and the basketball hoop provision fed into that scheme. Where the proposed improvement is a portable basketball hoop that will be stored when not in use, and the board approves only this, then a the affected parties cannot rely upon the approval when they use a portable basketball hoop that is not so stored.

The hair splitting that is required to reach the conclusion that the Association's discretion is limited to permanent basketball structures is actually a disservice to owners as well as to Associations, as it removes a vital flexibility that permits parties to ease around the rough spots in intercommunity political disputes.

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