stating that purchasers of condominium units should realize that the regime in existence at the time of purchase may not continue indefinitely and that changes in the declaration may take the form of restrictions on the unit owners' use of their property
How later courts described this case
- stating that purchasers of condominium units should realize that the regime in existence at the time of purchase may not continue indefinitely and that changes in the declaration may take the form of restrictions on the unit owners' use of their property
- noting that a principal purpose of condominium rules and regulations is to create uniform living conditions for unit owners
- adopting “the reasonableness test, pursuant to which the validity of condominium rules is measured by whether the rule is reasonable under the surrounding circumstances”
- determination of "whether the decision or rule was arbitrary or capricious" entails consideration of whether "there be some rational relationship of the decision or rule to the safety and enjoyment of the [common interest community]" [emphasis omitted]
Written by the judges who cited it.
The opinion
Whiteside, J.,
concurring in judgment only. Although I concur in the judgment of reversal and remand, I cannot concur in some of the conclusions and reasons expressed in the majority opinion.
First, Ohio law, like North Dakota law, has an explicit requirement that “restrictions” be recorded prior to conveyance. Hence,
Breene
v.
Plaza Tower Assn.
(N.D. 1981), 310 N.W. 2d 730 , cannot be distinguished on that basis. See R.C. 5311.06(C).
The problem is that Ohio law
does not
expressly provide for use restrictions. R.C. 5311.05 sets forth the provisions that may be included in the declaration and makes no reference to use restrictions. Rather, only R.C. 5311.19 refers to restrictions and requires unit owners to “* * * comply with all covenants, conditions, and restrictions set forth in a deed to which they are subject or in the declaration, bylaws of the unit owners association, or administrative rules and regulations * * * as any of the same may be lawfully amended from time to time * * It is far from clear that new use restrictions can be imposed so as to prevent
continued use
of a unit for a purpose which was permitted prior to the amendment.
Likewise, I cannot concur in the statement in the majority opinion that we cannot “* * * derive a solution by comparison to real estate or zoning law * * First, it is solely real estate law issues that confront us; an analogy would be to deed restrictions. Second, zoning law is directly analogous and we are remiss if we fail to consider the real estate law issues before us in light of the existing law pertaining to use restrictions, namely, deed restrictions and zoning. The test for both is the test adopted in the majority opinion, namely, reasonableness. Even the nonconforming-use doctrine of zoning is a rule of reasonableness, it being unreasonable to prohibit a use which is in existence because of the economic hardship imposed. Additionally, the analogy to nonconforming-use principles is as about as close as any analogy can be. A legislative body (the unit owners’ association in this instance) has previously adopted use restrictions and now changes them to make “illegal” a use that was previously permitted, about as close as any analogy can be. The question is whether the new use restrictions adopted by amendment can properly be applied to abolish a use which was established and permitted under the use restrictions prior to the amendment.
Upon remand, the trial court should explore all tests of reasonable
*79
ness. No analogy is ever complete. However, the relationship involved in developing deed restrictions under real estate law and even zoning under public law is about as close as any analogy can be. To cast them aside on the assumption that “condominiums are unique” is unrealistic. Additionally, the value judgments expressed are more appropriate for the legislative mind than for the judicial mind. In fact, the condominium declaration and bylaws are nothing more than restrictive covenants akin to those in a subdivision declaration. See,
e.g., Dixon
v.
Van Sweringen Co.
(1929), 121 Ohio St. 56 , 166 N.E. 887 , and
Berger
v.
Van Sweringen Co.
(1966), 6 Ohio St. 2d 100 , 35 O.O.2d 127 , 216 N.E. 2d 54 . We are blessed with a body of law and precedent upon which to build and we should not put on “blinders” and “reinvent” the wheel.
Thus, although I concur in the judgment, I do not concur in the majority opinion.