CC&R expiring (Ohio)

My first thought is that you really need to contact an attorney well-versed in Ohio HOA matters.

Also, it might also be in your best interest to confirm that chicken "farms" are allowable.

Even though you are in a "rural" setting, many rural areas even today restrict certain types of activities within a certain distance range of residential areas.

Pig farms "used" to be okay in certain rural areas in our county. But a few years ago the county seat adopted some zoning restrictions even for the rural areas.

It might be worth a confirmation check with the zoning authority in your area.

Dennis,

The first thing that you need to do is to check with Ohio State HOA laws or Statutes to see if there are laws governing "Covenant Revitalization. Many States do have them, Florida being one of them

I have posted some of the paragraphs governing the process. Maybe if the State has none, this might be a guideline for you but either way, you will need an attorney to help with this process.

720.405 Organizing committee; parcel owner approval.--

(1) The proposal to revive a declaration of covenants and a homeowners' association for a community under the terms of this act shall be initiated by an organizing committee consisting of not less than three parcel owners located in the community that is proposed to be governed by the revived declaration. The name, address, and telephone number of each member of the organizing committee must be included in any notice or other document provided by the committee to parcel owners to be affected by the proposed revived declaration.

(2) The organizing committee shall prepare or cause to be prepared the complete text of the proposed revised declaration of covenants to be submitted to the parcel owners for approval. The proposed revived documents must identify each parcel that is to be subject to the governing documents by its legal description, and by the name of the parcel owner or the person in whose name the parcel is assessed on the last completed tax assessment roll of the county at the time when the proposed revived declaration is submitted for approval by the parcel owners.

(3) The organizing committee shall prepare the full text of the proposed articles of incorporation and bylaws of the revived homeowners' association to be submitted to the parcel owners for approval, unless the association is then an existing corporation, in which case the organizing committee shall prepare the existing articles of incorporation and bylaws to be submitted to the parcel owners.

(4) The proposed revived declaration and other governing documents for the community shall:

(a) Provide that the voting interest of each parcel owner shall be the same as the voting interest of the parcel owner under the previous governing documents;

(b) Provide that the proportional-assessment obligations of each parcel owner shall be the same as proportional-assessment obligations of the parcel owner under the previous governing documents;

(c) Contain the same respective amendment provisions as the previous governing documents or, if there were no amendment provisions in the previous governing document, amendment provisions that require approval of not less than two-thirds of the affected parcel owners;

(d) Contain no covenants that are more restrictive on the affected parcel owners than the covenants contained in the previous governing documents, except as permitted under s. 720.404(3); and

(e) Comply with the other requirements for a declaration of covenants and other governing documents as specified in this chapter.

(5) A copy of the complete text of the proposed revised declaration of covenants, the proposed new or existing articles of incorporation and bylaws of the homeowners' association, and a graphic depiction of the property to be governed by the revived declaration shall be presented to all of the affected parcel owners by mail or hand delivery not less than 14 days before the time that the consent of the affected parcel owners to the proposed governing documents is sought by the organizing committee.

(6) A majority of the affected parcel owners must agree in writing to the revived declaration of covenants and governing documents of the homeowners' association or approve the revived declaration and governing documents by a vote at a meeting of the affected parcel owners noticed and conducted in the manner prescribed by s. 720.306. Proof of notice of the meeting to all affected owners of the meeting and the minutes of the meeting recording the votes of the property owners shall be certified by a court reporter or an attorney licensed to practice in the state.

Donna thanks for replying. You actually replied while I was responding to Michelle so I'm sorry for posting twice in a row. From what I've been able to tell Ohio does not have an HOA law. They have a *Condo* law that covers all that good stuff but there is no HOA law. In fact there have been some groups trying to get one passed for years but it's never gone anywhere. In my research looking for an HOA lawyer I found one with an article on their site talking about this very issue and the last update was to say that the proposed law died in the 2007-2008 legislative session.

So basically HOAs are left existing solely on the strength of their CC&Rs, which as you can tell ours are admittedly very weak, in fact we have no HOA and no common property. The document provides no mechanism for amending or renewing them beyond the first renewal and there does not appear to be any statutory framework for doing it either. Beyond some basic declaratory language about where the property is and who the grantor is it then gives the language about the single renewal and then lists five restrictions. As I mentioned the other thing is there is no HOA.

PS Chickens aren't that bad unless you throw a rooster in the mix. You could always start raising Red-Tailed Hawks; they find chickens delicious and nutritious along with small dogs and cats.

Glen,

I suppose 10 chickens wouldn't be much of a problem but when there are bunches of them, their droppings smell worse than a heard or horses or cows. We chickened out() on a great deal on an old school house once because it was down wind across the street from a chicken farm. Wanted to create a restaurant in the school but the appetite would wain with the aroma that was present.

Dennis,

Have you polled every lot owner in the developement to see what they would like to do?

*I* have not, but somebody else has. I guess you could say I'm part of the I care about the neighborhood group and don't mind doing the legwork of pulling records since I do that for my job. Believe it or not my wife and I are in the "we'll go along with what everyone else wants" category. Chicken man is at the other end of the street and it would be nice to put up a shed to keep the lawn tools but it's not going to break my life either way.

There are 30 sublots in the development. Nine absolutely want to continue the CC&Rs. Six absolutely oppose it. That leaves 15. Of that four said they'll go along with whatever everyone else wants to do. The remaining 11 don't care either way but only a couple would be willing to vote. Interestingly I think 13 of the 15 without a firm opinion didn't even know that the CC&R's existed. Two of the six in opposition are relatively new and said they only moved into the neighborhood because they refused to live in an HOA but were willing to put up with the restrictions for a year or so until they expired because they liked the homes they bought. Given all the undecideds it *might* be possible to pull a bare majority but we're obviously never going to get a unanimous vote on anything that requires it.

The concern with the chickens is the waste and accompanying smells. The way our lots are set up they're extremely deep but fairly narrow. So even though the average lot is 3/4ths of an acre there might only be 30 feet between your house and your neighbor.

All - I was able to bend the ear of a real estate attorney this morning at the large firm I mentioned earlier. Since I knew him from a few years back when we lived in a condo and I was on the board he was willing to listen to our predicament.

He prefaced his thoughts with the caution that he was only issuing an informal opinion based upon all the facts I presented to him. Fair enough, he wasn't charging us so he wasn't going to do any legwork.

The short answer - there's nothing we can do.
The long answer - In accordance with the terms of the existing CC&Rs, they will expire on January 1, 2010 because while there was an automatic renewal in 2000 no provision was made for successive renewals. Further since the CC&Rs did not establish an HOA nor give procedures for amending the CC&Rs we can only go by what is provided, which is the one time renewal that expires in 2010. Without an HOA law to provide for a statutory CC&R amendment process there is simply no way for us to amend the existing CC&Rs other than to allow the current ones to expire under the stated terms and then enact new ones.

On to the next part - what about establishing new CC&Rs? We can do it, but one of the elements of establishing a CC&R is that the Grantor(s) must have title to the property. The problem is we now have 30 pieces of property that are all independently held. Anybody who wanted to be subject to the new CC&Rs could sign on and be subject to whatever that provided (including the formation of a formal HOA), but we would not be able to force any owner to be subject to the CC&Rs if he/she did not wish to do so.

So we could go with the formation of voluntary CC&Rs in which owners would have the option of irrevocably binding their property. Since we've got several owners who absolutely refuse to join we'd have situations where some houses could do things that others couldn't. From a marketing perspective I think that would be a bad thing because you might have a situation where the next door neighbor has a fence and a shed but you'd have to tell your buyer that they cannot put the same on their property. Even someone who is in favor of a deed restricted community would probably question why they should buy into something that theoretically protects the value of their home when their hillbilly next door neighbors get do whatever they want.

He also pointed out that the fact that we don't have an HOA doesn't really matter. Even if we did have one, if the documents did not provide for a way to amend and/or extend the CC&Rs the HOA would die on January 1 whether we liked it or not. He did say that if they had properly formed the HOA the odds would have been much higher that they would have included the necessary amend/extend provisions.

Thanks for everyone's input. I'll be delivering the news to the neighbors after work and we'll see what happens. Eggs anybody?

You're welcome to both eggs and freedom. Don't buy into a development that requires compliance to binding restrictions if you don't want to abide by the restrictions. Do buy into a development that requires compliance to binding restrictions if you want want to live in one that requires specific restrictions. Freedom to buy or not buy!

Sorry, John, but they do "run with the land," in whatever state the requisite number of votes required for amendment leave them.

So. . . .there you go.

You still are bound by the contract, even if the membership can change the parameters of the contract.

John,

I must take exception to your declaration that the covenants do not "run with the land" because they can be amended. Even if amended they STILL "run with the land", meaning they are passed on to succeeding owners. What the restrictions are doesn't require them to "run with the land", but rather just the fact that there are restrictions require them to "run with the land".

And just because the restrictions can be amended doesn't mean they are temporary. And just because they can be amended doesn't mean they ever will.

Splittings hairs:

It may or may not be incorporated ..... the vast majority are.
It may or may not be 'not-for-profit' ..... the vast majority are.

Corporations are formed ONLY to shield the 'formers' from personal liability and/or to spread any liability amongst the many members.

Corporations can be good ... they can be bad ... they can even be evil,
depending on the BOD.

?Many? first time buyers into a HOA 'governed' developement do not have a clue that they are actually waiving many constitutional rights ... if they knew in advance most would NEVER purchase. (e.g. myself)

Once one purchases it becomes in one's own self interest to make the system work PROPERLY according to corporate law.

And who's fault is that?

Michele,

This is a stock retort of many people who are against HOAs. I'd love to know exactly what constitutional rights are waived by being a member of an HOA. Apparently these same people don't understand that constitutional rights only apply to govenment entities. Their own employers can -- and do -- shirk consititutional rights but it's funny you never hear anyone complaining about that!