Paul Radon, Partner
Barkan & Robon Ltd.
The Lakemont Homeowners Association is represented by Paul Radon, partner at Barkan & Robon Ltd. Mr. Robon is a member of the Ohio State, American and Toledo Bar Associations, as well as the Association of Trial Lawyers of America. Recently, he was named an Ohio Super Lawyer by the Cincinnati Magazine and the Toledo City Paper named him the Best Attorney in Toledo for 2011 & 2012. Learn more about Mr. Radon.
Amendments to Deed Restrictions
During the Fall 2017 HOA meeting, a number of members requested information about how to make amendments to the deed restrictions. In efforts to help explain the process to make changes, the HOA Board reached out to Marvin A. Robon, the lawyer who has been hired to represent the Lakemont HOA.
HOA Board of Directors
This is in response to your request for some general advice on the amendment process for amending the declarations of restrictions of the Lakemont Plats. Please do not take this as a conclusive legal opinion, in that I have not had time to thoroughly review the restrictions. I represent several homeowners’ associations, and when reviewing restrictions for a particular project, I sometimes find ambiguities or inconsistencies within the documents. Since that kind of review takes time, and I charge by the hour, I will forego a more detailed analysis until you give me the “green light.”
Generally, declarations of restrictions have a specific amendment section. I looked at one of the plats and can see that it calls for a 50% written approval by lot owners to amend. It also calls for a recorded document in that regard. Great care has to be given to the identity of lot owners and how record title is held. Public records have to be reviewed to be sure each lot is properly signing approval. If owned by a husband and wife, for example, both must sign; if owned in trust, the trustee must sign; if owned by a limited liability company, the duly authorized member must sign, etc. Because the amendment document must be recorded, all signatures must be acknowledged before notaries public, so there are many signatures and acknowledgments on amendment documents, and they are many pages long, even if the substance of the amendment is only on one or two pages.
I also advise, in the interest of conserving attorney fees, that before amending, the Association get a very good idea that it will have sufficient enthusiasm that translates into sufficient votes. Much of the work and expense occurs before the gathering of signatures on the formal document. If the Association incurs all of this expense, and falls short on signatures and acknowledgments, it has wasted time and money.
I advise Board members not to be so naive as to think that because the amendments are worthwhile to them, that they can just call a meeting and the requisite 50% ownership will show up to sign and acknowledge their signatures. Similarly, a door‑to‑door campaign where you present a formal, legal-looking document to homeowners, is very unlikely to gain signatures. People who have not been prepared, will not be inclined to sign a legal document. They will wonder what rights they might be giving up, whether they should be getting their own lawyer to look at it and paying for that, and the merits of the amendment in general. Here again, much work and expense is incurred, and the Association finds itself short of the required 50%.
I recommend that the Board first gauge enthusiasm among record homeowners, with some public relations campaign, to at least get a sense that enough people will sign and understand the amendment. Even with this effort, you can still end up short of the required signatures when the legal document is presented, but at least you will have some comfort level that the project is worthwhile pursuing. I, of course, can prepare the documentation, but there is no way I can guaranty the signatures and acknowledgments.
Much of what I have stated above runs contrary to me earning fees, but an Association does not want legal counsel to think first about how much money he could make, rather than what is best for the client. I view myself as part of my clients’ teams, and I am not interested in charging a lot for preparatory review of property records, research, and drafting, when the project has no chance of concluding. Amending declarations of restrictions is not a simple process of having a meeting and people raising their hands with votes. Amendments to declarations affect the property rights of all owners within the subdivision, and all of them, as well as future purchasers, must be able to have public record access to their rights, responsibilities, and restrictions on property use.
Finally, you questioned me about a petition to the Board. I am unaware of any reference to that in the restrictions (but again have not reviewed them thoroughly), or in the code of regulations. If you are referring to a homeowners’ petition to the Board requesting some type of action, I am guessing this is intended to show a desire among the homeowners for the Board to take on a project. If that is the case, then in order for the petition to properly allow the Board to gauge enthusiasm, the Board should be confident that those signing have a right to vote, and only one vote per lot is presented. If, for example, you have five people living in a household who all sign a petition, that can only represent one vote. It is not a question of how many people live in the subdivision, but how many lots exist, and whether the record owner of enough lots are represented in the petition.
I hope this has answered your questions, but again it is not to be construed as a legal opinion after research and thorough review of recorded documents. I have not yet done that, but I believe the foregoing is nevertheless sound legal advice.
Paul Radon, Partner – Barkan & Robon Ltd.