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Lubow v. Haaf Farms Homeowner's Association

Court of Appeals of Ohio, Fifth District, Fairfield

May 8, 2017

BARRY L. LUBOW, ET AL. Plaintiffs-Appellees
v.
HAAF FARMS HOMEOWNER'S ASSOCIATION Defendant-Appellant

         Appeal from the Fairfield County Court of Common Pleas, Case No. 14 CV 487

          For Plaintiffs-Appellees: JEFFREY R. CORCORAN, RICK L. ASHTON.

          For Defendant-Appellant:DAVID A. DYE.

          Hon. Patricia A. Delaney, P.J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          DELANEY, P.J.

         {¶1} Defendant-Appellant Haaf Farms Homeowners Association appeals the September 15, 2016 judgment entry of the Fairfield County Court of Common Pleas.

         FACTS AND PROCEDURAL HISTORY

         {¶2} The Haaf Farms subdivision is located in Violet Township, Fairfield County. In the 1980's, Homewood Corporation began development of the Haaf Farms subdivision into lots for residential homes. On October 27, 1989, Homewood Corporation recorded a plat for Section 1 of the Haaf Farms subdivision ("1989 Plat"). Section 1 consisted of Lots 1 through 52.

         {¶3} On November 17, 1989, Homewood Corporation recorded a Declaration of Protective Covenants for Section 1 of the Haaf Farms subdivision. The 1989 Declaration established that the lots in Section 1 were to be used for only residential purposes, the square-footage of the dwellings, the location of the dwellings on the lots, utility easements, landscaping easements, and drainage easements. Lot 51 in Section 1 is burdened by a drainage easement. The 1989 Declaration did not establish or make any reference to a homeowners association, membership in a homeowners association, or any obligation to pay any homeowners association assessments.

         {¶4} On June 4, 1990, Homewood Corporation transferred Lots 10, 47, and 51 of Section 1 by general warranty deed to Status Homes, Inc.

         {¶5} Defendant-Appellant Haaf Farms Homeowners Association filed Articles of Incorporation with the Ohio Secretary of State on September 14, 1990. The purpose of the Haaf Farms Homeowners Association stated in the Articles of Incorporation was to establish uniform rules and regulations pertaining to the Haaf Farms subdivision. The Articles of Incorporation referred to a Deed and Code of Regulations, which were not included in the Articles of Incorporation. Pursuant to Article IV, membership in the Haaf Farms Homeowners Association was described as follows:

Each record owner of a fee simple interest in any Lot in the Subdivision, including all additional lots and phases or sections in the subdivision to be added at a later time, shall be a member of the Association, and shall be called a "Member". The foregoing is not intended to include persons or entities who or which hold an interest merely as security for the performance of any obligation. Membership shall be appurtenant to and may not separated from ownership of a Lot and transfer of a Lot shall automatically transfer membership to the transferee, together with all rights and obligations of the transferor with respect to the Lot and other property. Voting rights of Members shall be as set forth in the Deed and Code of Regulations.

         {¶6} The Articles of Incorporation named the initial Trustees of the Haaf Farms Homeowners Association as Clark Bierl, Gary M. Klemek, and John H. Bain.

         {¶7} On September 19, 1990, Homewood Corporation executed a general warranty deed granting 201.488 acres of land to John H. Bain ("1990 Declaration"). The 1990 Declaration described the property transferred in metes and bounds, not by lots. Article II of the 1990 Declaration included the same language as the 1989 Declaration. Article III included language not found in the 1989 Declaration. Article III of the 1990 Declaration established a homeowners association. The first provision stated in pertinent part:

In order to provide for the maintenance and landscaping of Reserves that may be hereafter be conveyed to said Association and entrance features and landscaping within the Haaf Farms Development, to contribute to the enjoyment of the owners of the development and to provide for other matters of concern to the owners of lots ("Lots"), which Grantor has or will organize a Homeowners' Association, which may be known as Haaf Farms Homeowners Association, * * *. * * * The Association membership shall be comprised of the record owners of all lot owners in the Subdivision, including additional lots and phases or sections in said subdivision to be added hereto at a later time and including all record owners of all lots in Section 1 of Haaf Farms if the same choose to join and become members of the Association. * * *

         {¶8} The second provision of Article III refers to assessments: Each owner of any improved Lot * * *, by acceptance of a deed or other conveyance thereto, whether or not it shall be so expressed in such deed or conveyance, is deemed to covenant and agree to pay to the Association an annual assessment for Common Expenses (as hereinafter defined) and special assessments (as hereinafter provided). For purposes hereof, the term "Common Expenses" shall mean the expenses and costs incurred by the Association in performing the rights, duties and obligations set forth herein and in its Articles of Incorporation or By-Laws.

         {¶9} On September 19, 1990, John H. Bain transferred the 201.488 acres back to Homewood Corporation.

         {¶10} On November 30, 1990, Status Homes, Inc. transferred Lot 51 in Section 1 to Kent W. Parrill. On March 1, 1991, Kent W. Parrill transferred Lot 51 to Kent W. Parrill and Laurel K. Parrill. On August 1, 1994, the Parrills transferred Lot 51 to Plaintiff-Appellee Barry Lubow. On March 19, 1998, Plaintiff-Appellee Barry Lubow transferred Lot 51 to Plaintiff-Appellees Barry and Susan Lubow.

         {¶11} The Lubows chain of title contains no reference to the restrictions set forth in ...


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