Background
Charles and Kristy Bellofatto owned Lot 10 in the Hampden Ridge Subdivision, where recorded restrictive covenants prohibited outbuildings without the developers’ written approval. They later acquired an adjacent parcel outside the subdivision and replatted it together with Lot 10 as Lot 10A.
The Bellofattos constructed a 1,440-square-foot outbuilding on Lot 10A without seeking the developers’ approval, despite neighbors warning that the project might violate the covenants. Subdivision property owners sued for declaratory and injunctive relief. The trial court granted summary judgment, struck part of Kristy Bellofatto’s affidavit, and ordered the outbuilding removed.
The Court’s Holding
The Fifth District affirmed. The majority held that the covenants’ language was clear and unambiguous and that the Bellofattos’ merger of the adjacent parcel with restricted Lot 10 subjected the combined Lot 10A to the subdivision’s covenants. Because the Bellofattos did not obtain the required approval, no genuine issue of material fact remained as to the violation.
The court also upheld the order requiring removal of the outbuilding, reasoning that the Bellofattos proceeded at their own risk after receiving notice and that removal was the remedy capable of redressing the covenant violation. It further found no abuse of discretion in striking Kristy Bellofatto’s lay opinion about what an “average person” would understand regarding the subdivision’s boundaries. Presiding Judge King concurred as to the covenant violation and evidentiary ruling but dissented from affirmance of demolition, concluding that the proper remedy required an evidentiary hearing on good faith and the balance of hardships.
Key Takeaways
- Replatting and combining unrestricted acreage with a lot subject to subdivision covenants can subject the combined property to those covenants.
- An owner who continues construction without required approval after receiving notice of a possible covenant violation risks a mandatory injunction requiring removal.
- A lay witness’s unsupported opinion about what an hypothetical “average person” would believe may be excluded under Ohio Evid. R. 701.
Why It Matters
The decision underscores that changing parcel boundaries does not necessarily eliminate recorded land-use restrictions and may extend them to property combined with a restricted lot. Owners and counsel should resolve covenant applicability before beginning construction, particularly when the proposed structure requires architectural or developer approval.
The partial dissent also identifies a significant remedial issue: whether proof of a covenant breach alone justifies demolition on summary judgment or whether a court must first develop evidence concerning willfulness, good faith, hardship, and the availability of damages.