Removing Deed restrictions

Started by JeffP12 • 12 replies • 656 views

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JeffP12 (Ohio)
Posts: 2

Posted:

I live in Ohio and can find no Info in the revised code 5312 pertaining to having deed restrictions removed. I live on a county road off of association property. I do not have to traverse association private roads at all.They have removed the members dumpsters fom this end of their property to 2.7 miles away. I do not need to use their common areas as I have my own lake for swimming and fishing. My neighbors on either side are not deed restricted, as well 3 of the 6 people on the county road. I have asked the board to remove all CC&R's from my deed 2 months ago and the only response is "we have not put your request to the board yet, we have been busy."
Where can I find info on this in the code regarding my request and their requirements regarding such a request? My dues only go to public area upkeep, their private road maintenance and dumpster rental.
Thanks in advance,
Jeff

SheliaH (Indiana)
Posts: 6,964

Posted:

CCRs run with The land, so just because you don't like them doesn't mean you can ignore them or opt out. It's not a cafeteria situation either, where you pick and choose which CCRs you'll follow and skip the rest. Same thing with the assessments - If there's land that's the HOW's responsibility, you have to pay your fair share of expenses because you automatically became a member when you bought your home.

This is the type of information homeowners should know before they buy and then they need to read their documents to understand how the HOA works - and how it's dissolved so the CCRs wouldn't apply to anyone in that community because it would no longer exist. So, start with reading what you have - it's probably among the documents you got at closing - which you may or may not have bothered to read since then.

Now dissolving the association and the CCRs that come with them isn't as simple as it sounds because you have to address what happens to the common area - you may need to persuade the county to take it over and then it may set up the area as a special tax district so you and your neighbors would be taxed to pay for the upkeep of that area. Are you certain your neighbors would agree to that?

By the way, if some of your neighbors don't have deed restrictions, it may be because their land wasn't part of the HOA land when it was built - check your documents to see if they note the areas that are part of the HOA. There may also be something at the county recorder's office you can review.

It seems to me this has come up because you're really honked off at the dumpsters being moved. Did you ask the board why this was done? What about the agency that picks up the trash - this may have been their decision? Perhaps there are plans to replace the dumpsters - why not ask about that and see what can be done to have them replaced or at least move them to a more convenient location. Talk to your close neighbors as well - I'm sure this also affects them and then you can all work together to resolve the problem.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

SheliaH (Indiana)
Posts: 6,964

Posted:

One more thing - you don't say If this code is state of local - this may be a city or county jurisdiction, so you may need to check those codes. Or have your attorney review your documents so you'll know what your options are. Most of us are attirn, and it's not a good idea to get legal advice from the internet.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

CathyA3 (Ohio)
Posts: 6,299

Posted:

If the restriction is an HOA restriction, and not one imposed by the county or other entity, then almost certainly it will require a vote from the membership of the association to remove it - it's not something the board can do on its own. This means a majority of homeowners must approve the change - and many times amending CC&Rs needs a super-majority of 67% or 75% to approve the change.

How to find out if it's an HOA restriction: look on your county recorder's website and search for the HOA's name. Look for "Declaration" as the document type. You may also want to check the "Easement" or "Agreement" document types to see if there is something relevant.

There may be other things involved in this restriction besides use of the dumpster, and you need to know about them. You may want to spend a few bucks to talk to a lawyer about this. For one thing, amending CC&Rs costs money - and the HOA would have no incentive to spend homeowners' money on something that benefits someone else.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JeffP12 on 09/25/2021 4:28 AM
I live in Ohio and can find no Info in the revised code 5312 pertaining to having deed restrictions removed. I live on a county road off of association property. I do not have to traverse association private roads at all.They have removed the members dumpsters fom this end of their property to 2.7 miles away. I do not need to use their common areas as I have my own lake for swimming and fishing. My neighbors on either side are not deed restricted, as well 3 of the 6 people on the county road. I have asked the board to remove all CC&R's from my deed 2 months ago and the only response is "we have not put your request to the board yet, we have been busy."
Where can I find info on this in the code regarding my request and their requirements regarding such a request? My dues only go to public area upkeep, their private road maintenance and dumpster rental.
Thanks in advance,
Jeff

I read right past the part in bold. So yeah, this isn't just the dumpsters.

The other issue for the HOA is that, just because you don't use their private road and dumpster is no guarantee that the next person who owns your property won't use them. There is also no reasonable way for the HOA to verify that someone isn't using something - the honor system is a non-starter. So I'm not seeing any incentive for the HOA to change anything, and plenty of incentive not to do so.

But your lawyer may see something different.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SheliaH on 09/25/2021 9:36 AM
CCRs run with The land, so just because you don't like them doesn't mean you can ignore them or opt out. It's not a cafeteria situation either, where you pick and choose which CCRs you'll follow and skip the rest. Same thing with the assessments - If there's land that's the HOW's responsibility, you have to pay your fair share of expenses because you automatically became a member when you bought your home.

This is the type of information homeowners should know before they buy and then they need to read their documents to understand how the HOA works - and how it's dissolved so the CCRs wouldn't apply to anyone in that community because it would no longer exist. So, start with reading what you have - it's probably among the documents you got at closing - which you may or may not have bothered to read since then.

Now dissolving the association and the CCRs that come with them isn't as simple as it sounds because you have to address what happens to the common area - you may need to persuade the county to take it over and then it may set up the area as a special tax district so you and your neighbors would be taxed to pay for the upkeep of that area. Are you certain your neighbors would agree to that?

By the way, if some of your neighbors don't have deed restrictions, it may be because their land wasn't part of the HOA land when it was built - check your documents to see if they note the areas that are part of the HOA. There may also be something at the county recorder's office you can review.

It seems to me this has come up because you're really honked off at the dumpsters being moved. Did you ask the board why this was done? What about the agency that picks up the trash - this may have been their decision? Perhaps there are plans to replace the dumpsters - why not ask about that and see what can be done to have them replaced or at least move them to a more convenient location. Talk to your close neighbors as well - I'm sure this also affects them and then you can all work together to resolve the problem.

Well said.

TimB4 (Tennessee)
Posts: 21,063

Posted:

Jeff,

Typically, the CC&Rs specify what properties they are applicable to.
To remove this applicability, the Association would need to amend the CC&Rs.
This requires membership approval.

Typically, it requires 2/3 or more of the members to agree to make any changes to the covenants. Check your governing documents and applicable statutes to find out the exact percentage.

If you can find enough support in the membership, then you can get the documents changed.

JeffP12 (Ohio)
Posts: 2

Posted:

Thank you for the information all. I went and talked to the president of the board over the weekend, basically he said sorry but I am not going to do anything with your request and as far as I could tell he never even informed the other board members of my request. So now I am going to request to speak to the board at their next meeting and explain my position to the ENTIRE board and try to embarass the president for arbitrally declining my request with out due process according to our HOA by-laws And the request that the membership be allowed to decide my request.

SheliaH (Indiana)
Posts: 6,964

Posted:

I understand you're angry but as tempting as it may be to embarrass the president, stick to the main issue and keep personalities out of it (it's immature and you're too old for junior high BS - or should be). Actually, you should have gone to the entire board first - the board president is only one vote and can't make association decisions by himself.

I'd also suggest you start by focusing on what you really want - I still think the dumpsters is driving this thinking, so if you want them moved back to where they were or to a more convenient location, talk about that. However, if you want to be released from the deed restrictions, this isn't something that's granted to one person only. to be done with the CCRs means you'll have to dissolve the association - and that's not a board decision either. That's why I said (and continue to say) read your documents - you'll probably see dissolving the association requires a 100% affirmative vote by all homeowners (if even one says no, it doesn't happen).

There's also the matter of who will take care of the common areas, what to do with other association assets (the money in the operations and reserve budgets), getting the county to agree to take the common areas over, etc. This doesn't happen overnight and isn't cheap, as the association will have to use the money to wrap up operations. I suspect you still haven't ready your documents so before you talk to the board about that, do yourself a favor and read them to see what's required. You might even want to ask a few of your neighbors to see if they'd be on board with this and ask them to come to the meeting for support.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

TimB4 (Tennessee)
Posts: 21,063

Posted:

Jeff,

Now that you are aware that this is a membership vote, prior to speaking to the board do some of the work. That is to say, draft the amendment to the CC&Rs which will remove your property.

I've found that those who are on the fence are more likely to agree to something (in this case, presenting it to the membership) if they don't have to do any of the work.

If the board agrees and the amendment is presented to the membership for a vote, then your real work will begin. You will need to knock on doors and educate the membership as to why you are bringing this proposal for a vote. If you Association allows proxies, collect as many as you can so you can vote for those who don't attend the meeting.

I wish you luck.

Tim

LoriM15 (Florida)
Posts: 1,009

Posted:

Would the CC&Rs have to be dissolved in order to remove the homeowner's property from the association? Or could they just amend them and replat the area included in the association? Our master association recently deeded over some property to a sub-association so they would have the responsibility to maintain it. We had a deed drawn up by our attorney, all parties signed and we recorded it with the county. I'm just wondering if the homeowner could propose and pay for something similar.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By JeffP12 on 09/28/2021 5:02 AM
Thank you for the information all. I went and talked to the president of the board over the weekend, basically he said sorry but I am not going to do anything with your request and as far as I could tell he never even informed the other board members of my request. So now I am going to request to speak to the board at their next meeting and explain my position to the ENTIRE board and try to embarass the president for arbitrally declining my request with out due process according to our HOA by-laws And the request that the membership be allowed to decide my request.

You seem to assume that the rest of the board will be more receptive than the president. They may be perfectly happy having the president filter what comes before the board. In any case, I agree with Tim's post that you should expect to do the legwork on this, there is no reason to expect any directors to want to put time and energy into it. On top of that, if this were my association I would expect you to cover any expenses related to this effort.

Escaped former treasurer and director of a self managed association.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By JeffP12 on 09/25/2021 4:28 AM
. . .and can find no Info in the revised code 5312 pertaining to having deed restrictions removed. . . .

I do not need to use their common areas . . .

I have asked the board to remove all CC&R's from my deed 2 months ago and the only response is "we have not put your request to the board yet, we have been busy."

Where can I find info on this in the code regarding my request and their requirements regarding such a request ? . .

Not legal advice.

1 - Maybe you need to sharpen up what you are looking for. And where to look for it. Otr what it's financially worth to you to escape.

In most or likely all jurisdictions, cross-covenanted-titled groups of properties are provided a judicial amendment or modification process. That's for those with bucks & thick skins. That's as to restrictive covenants purported to run with the title to your property.

To get a judicial deletion from title, a restriction-challenger typically must bring facts & law together to satisfy whatever ( Ohio's ) judicial criteria.

You may have to get competent legal help. Typical grounds include obsolescence, benefit-burden etc

2 - IF - IF - Ohio law provides for "expiration by operation of law" or U.S. styled MRTA, then your competent legal help could calculate if the restrictions have expired like Cinderella's pumpkin at midnight.

And then maybe apply to your land registry / title environment to expunge them from your property's title.

( I happen to live in a jurisdiction with an MRTA provision likely harsher than in most American states. Two relevant biggies are the 1981 legislative abolition of "revitalization by reference" here, to go along with express expiration formulae going back to 1929. Many Floridans would be envious.

3 - If the restrictions spring merely from easement law, maybe you should track down Ohio easement law.

There can be a subtle difference from genuine cross-covenanting, where legislatures are reluctant to imprison properties simply because they had been originally press-ganged into being "dominant tenements" but no longer use the privileges ( as you claimed above ).

One such California example was actually applied on Hot Bench last week to free a non-benefitting property. . .

4 - Good luck with acquiring or hiring the skillsets to escape . . .

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