Covenants, Conditions and Restrictions

In Ohio, Covenants, Conditions, and Restrictions (“CC&Rs”) are known as the declaration and bylaws.  The declaration is a document filed with the county that declares the deed restrictions and designates the property as a planned community.  Bylaws are a document also filed with the county that provides for the operation of the owners association and governs its internal operations.  

Declarations and bylaws are filed in the county at the recorder’s office in which the property is located.

First, a document is prepared by an attorney and distributed by the board to the owners providing the language of the proposed amendment.  Generally, to amend the declaration or bylaws requires 75% approval from owners.  If obtained, the second step involves preparing a document to be filed with the county thereby making it legally binding and an enforceable part of the declaration and bylaws.

The declaration and bylaws should be very specific.  Vague governing documents can be open to multiple interpretations, which then may create the possibility of disputes and legal challenges.

The declaration and bylaws are restrictions on each property filed with the county, whereas rules and regulations are administrative guidelines enacted and modified by the board and are often the common sense do’s and don’ts governing the property: for example “pet owners must immediately clean up after their pets.”

Each association’s declaration “declares” what are common elements owned by the association or all the owners as tenants in common, versus what is owned by the owner.  Common elements often include the association’s pool, clubhouse, or other shared amenities.

When there is a conflict between the declaration and the bylaws, the declaration controls.  

Rules are promulgated by the board and are generally more specific than the restrictions contained in the declaration. Rules are the common sense do’s and don’ts of community association living.

To be valid, the language of a restriction within the governing documents must be clear and concise.  If the restriction is unclear, it often takes litigation to resolve the issue, because vagueness usually leads to multiple ways to interpret the provision. 

Legal challenges are always a possibility, though the likelihood of an owner prevailing on such as challenge is minimal, absent discrimination involving a protected class or other substantive issue with the rule or restriction that makes it unenforceable or illegal.  For these reasons, boards should always consult with legal counsel with adopting rules and amending governing documents.

All Ohio community association board members must comply with FHA laws.  The Fair Housing Act prohibits discrimination against individuals based on race, color, sex, national origin, familial status, religion, or disability.  This means that a board cannot adopt a rule or propose a restriction that discriminates based on these protected classes.

In Ohio, Boards must make the final decision on enforcement infractions and assessments for violations.  If the board makes a decision, there is no appeals process other than legal action.  Ohio law stipulates that the board itself has the power to levy “enforcement assessments” for rule violations.

In Ohio, there are no such things as “fines,” but rather, the board is permitted to levy “enforcement assessments.”  Most Ohio associations set enforcement assessments as a consistent, flat rate, or the cost to remedy the violation.  A flat rate removes the possibility of an enforcement assessment being challenged on the basis that it is arbitrary.  The amount of any enforcement assessment must be reasonable and reasonableness may vary from property to property.

Yes, the board can levy enforcement assessments for violations of the declaration, bylaws and rules.  However, the association must first go through procedures in Ohio law that basically require a first warning letter providing an opportunity to cure the violation followed by a letter levying the enforcement assessment that must include the owner’s right to request a hearing with the board.

No, the board does not have to provide an appeal process but an owner who is assessed an enforcement assessment must be given a right to a hearing with the board. 

If an owner is unhappy with the board’s enforcement decision, their only remedies are compliance or legal action.  

A regulation is “reasonable” if, in the opinion of an ordinary reasonable person, it directly promotes the health, happiness, safety, or peace of mind of the residents, it is not arbitrary, and it does not treat certain residents differently from others.

A Board makes residents aware of its actions with official written notices, newsletters, and websites.  A transparent board is one that keeps its owners fully informed as to all financial and operational aspects of the property.  Transparency involves a board letting its owners know all details of its activity.

Governmental sunshine laws do not apply to private corporations, including community associations.  As a result, a board may hold meetings and make decisions without being in full view of the owners, unless the community’s governing documents provide otherwise.  

Owners must be informed of a new rule prior to the rule being enforceable. While no notice is required by statute, many governing documents require a 30-day advance notice before a rule is enforceable. 

As soon as a rule is enacted and notice of it is provided to the owners it becomes enforceable; however, an association may also have a provision in their governing documents that delays enforcement of newly enacted rule for a specific amount of time.

Yes, association boards have a duty to enforce properly documented or evidenced violations of the association’s rules and restrictions or to change or eliminate the rule.  The board need not be a police force and go in search of violations; however, when in receipt of a notice of alleged violations, the board has a reasonable duty of enforcement.

Alternative Dispute Resolution is the use of methods outside of litigation, such as mediation or arbitration, that allow opposing parties to resolve a dispute without incurring large litigation fees. 

Mediators are individuals that explore potential resolutions to solve a dispute and facilitate discussion between the parties.  Mediators do not make decisions; instead an agreement is created between the opposing parties.  Conversely, in arbitration, the arbitrator makes a final decision that is binding and enforceable.  The decision of an arbitrator may not be appeal

Many Ohio Bylaws mandate that individuals who initiate arbitration involving the association must pay for it.  Dispute resolution is not a common practice among Ohio community associations until after litigation is initiated.

Ohio community associations cannot place restrictions that directly interfere with the buying and selling of property, though certainly some restrictions may impact whether or not a particular buyer wishes to buy property in the community, such as restrictions on leasing or business use, as well as the manner in which properties are sold, such as restricting for sale signs or open houses. 

Architectural controls are the board’s or architectural control committee’s requirements that determine what changes may be made to physical structures in the association in terms of aesthetics.  What is reasonable is largely determined by the provisions of the governing documents initially drafted by the developer, and as thereafter amended by the owners of the association, that is consistent with the architectural harmony of the surrounding community

Yes.  Ohio boards have the power to enact rules that are in the best interest of the entire community.  A condominium board may require that all contractors working on the property be licensed.  Such a rule clearly protects the safety of the property and its residen

Play-sets that have a concrete base or other substantial features are generally considered a permanent fixture.  A temporary structure is generally one that may be moved inside from time to time.  

Currently in Ohio yes, an association may prohibit or restrict the installation of energy efficient systems, such as solar panels and clothes lines, on the basis of aesthetic concerns, provided that in a homeowners association, the association has architectural control authority over the individual lots. 

If the association’s governing documents allow for it, the association can grant a variance.  However, the requirements to grant a variance should be limited and not granted in an arbitrary manner.  Additionally, if these requirements are not met and a variance is granted, it may be deemed unenforceable if challenged in court. Every Ohio board has a duty to act reasonably.  While rare, variances can and should be granted if appropriate circumstances warrant.  As an example, an association that prohibits pets must grant a variance for a Seeing Eye dog to accommodate a medical necessity.

Encroachments in common elements involve an individual owner placing something in an area that is commonly-owned by the owners or the association.  Associations often have self-help provisions to allow them to summarily remove encroachments. 

No, while community association boards should keep safety in mind when making decisions to preserve and protect the wellbeing of the community, most community associations do not have the duty to provide safety to the residents.  So the board may, but is not required to, take steps to protect the safety of the residents.

Yes, but only of the board has evidence of the violation, meaning that the Association has a radar gun or surveillance equipment that can accurately identify speed.  In Ohio, based on certain signage and minimum 25mph speed requirements, the local police are authorized to issue speeding tickets within community association private roads.

Holiday display restrictions are reasonable when they do not include restrictions based on religion and that do not cause an unreasonable disturbance to neighbors.  Time, place, and manner restrictions on holiday decorations are viable.

Political signs are often regarded as a form of speech and therefore, normally protected under the first amendment; however, this protection does not fully include speech that occurs in private community associations if the governing documents restrict signage.  In Ohio, the banning of political signs is based on ownership of the land where the sign is placed.  In most condominium associations, the association owns and maintains the green space around a residence, and so a condominium board may restrict or prohibit political signs in the common elements.  In a homeowners association where the individual lot owners own the lot and land surrounding the home, the governing documents must either contain a prohibition against signage or permit the board to enact rules restricting signage.  If the authority to restrict signs, including political signs, is not in the governing documents, the Board has no the authority to do so.  Even if the Board has the ability to restrict signs, enforcement at or around election season can be difficult.