Court of Appeals of Ohio, Fifth District, Fairfield
BARRY L. LUBOW, ET AL. Plaintiffs-Appellees
HAAF FARMS HOMEOWNER'S ASSOCIATION Defendant-Appellant
from the Fairfield County Court of Common Pleas, Case No. 14
Plaintiffs-Appellees: JEFFREY R. CORCORAN, RICK L. ASHTON.
Defendant-Appellant:DAVID A. DYE.
Patricia A. Delaney, P.J. Hon. John W. Wise, J. Hon. Earle E.
Wise, Jr., J.
Defendant-Appellant Haaf Farms Homeowners Association appeals
the September 15, 2016 judgment entry of the Fairfield County
Court of Common Pleas.
AND PROCEDURAL HISTORY
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
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.
On June 4, 1990, Homewood Corporation transferred Lots 10,
47, and 51 of Section 1 by general warranty deed to Status
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.
The Articles of Incorporation named the initial Trustees of
the Haaf Farms Homeowners Association as Clark Bierl, Gary M.
Klemek, and John H. Bain.
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. * * *
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.
On September 19, 1990, John H. Bain transferred the 201.488
acres back to Homewood Corporation.
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.
The Lubows chain of title contains no reference to the
restrictions set forth in ...