[Cite as Cumberland Trail Homeowners Assn., Inc. v. Bush, 2011-Ohio-6041.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CUMBERLAND TRAIL HOMEOWNERS 

ASSOCIATION, INC. 

 Plaintiff-Appellee 

-vsPETER F. BUSH, et al. 

 Defendants-Appellants 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 11 CA 40 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Municipal Court, 

 Case No. 10 CVF 01457 

JUDGMENT: Reversed 

DATE OF JUDGMENT ENTRY: November 15, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellants 

ELIZABETH J. WATTERS STEVEN W. MERSHON 

CHESTER, WILLCOX & SAXBE MERSHON AND PREDIERI 

65 East State Street, Suite 1000 128 South Main Street, Suite 100 

Columbus, Ohio 43215 Granville, Ohio 43025 
Licking County, Case No. 11 CA 40 2

Wise, J. 

{¶1} Defendants-Appellants Peter and Sharon Bush appeal the decision of the 

Licking County Municipal Court, which granted a monetary judgment against them in 

favor of Plaintiff-Appellee Cumberland Trail Homeowners Association, Inc. in an action 

seeking recovery of association fees and collection costs. The relevant facts leading to 

this appeal are as follows. 

{¶2} In 2004, appellants became the owners of Lot #199 in the Cumberland 

Trail Subdivision, Etna Township, with a present street address on Arrow Wood Court. 

This property is subject to a 1998 declaration of covenants, conditions, and restrictions 

which was recorded in Licking County in 1998. This declaration was enacted by 

Columbia Road, Ltd., the developer of the Cumberland Trail Subdivision, who was 

designated the "Declarant'' in the original declaration. The covenants, among other 

things, limited the use of the lots and restricted the location and types of structures that 

could be built. However, the restrictions therein did not provide for the existence of a 

"homeowners association" and did not levy assessments against any lot owners. 

{¶3} The original Declaration contains the following pertinent provision in Article 

II: 

{¶4} “(A) TERM: These covenants are to run with the Lots and shall be binding 

on all Owners of the above-described real estate until January 1, 2037, after which 

time said covenants shall be automatically extended for successive periods of ten (10) 

years, unless an instrument signed by a majority of the Lot Owners is recorded, 

agreeing to change said covenants in whole or in part.” 
Licking County, Case No. 11 CA 40 3

{¶5} In 2007, some of the owners of property in Cumberland Trail Subdivision, 

relying on the aforesaid provision, sought to amend the original subdivision covenants 

to create a homeowners association and to impose assessments on all homeowners in 

the subdivision. For that purpose, an “Amendment to Declaration of Covenants, 

Conditions and Restrictions for Cumberland Trail Subdivision Sections 1, 2, 3, 4, 4 

(Part 2) and 5” was recorded on September 5, 2007, approximately three years after 

appellants purchased their home. Appellants took the position that they were not a 

party to the amendment and have not consented to the terms of the amendment. 

{¶6} Appellee Association thereafter billed appellants for an initial reserve fee 

and dues. Subsequently, the Association billed appellants for dues for 2008, 2009 (in 

the amount of $95 each) and 2010 (in the amount of $105). These amounts were not 

paid. 

{¶7} Appellee Association accordingly filed an action to recover fees in the 

Licking County Municipal Court. Appellants filed an answer and claimed that they did 

not owe the assessments because the purported amendment was ineffective. They 

also contended that the ownership of their home could not be subjected to additional 

restrictions that are not reasonably related to the restrictions that applied when they 

acquired the property. They further maintained that the restrictions could not be 

amended to require mandatory membership in a homeowners association, or to 

impose assessments, where there are no commonly owned assets to protect or 

improve. 

{¶8} The trial court conducted a hearing on November 4, 2010, at the close of 

which the court asked for the submission of post-trial briefs and findings of fact. On 
Licking County, Case No. 11 CA 40 4

March 2, 2011, the trial court issued a judgment entry in which it held, inter alia, that 

"the documents filed of record with respect to the Cumberland Trail Homeowners 

Association gives that association legitimacy and also the power to assess property 

owners for dues and to enforce those assessments.” Judgment Entry at 2. The trial 

court further granted judgment to Appellee Association for unpaid dues in the amount 

of $1,128.29, plus $376.10 for appellee’s attorney fees. 

{¶9} On April 1, 2011, appellants filed a notice of appeal. They herein raise the 

following sole Assignment of Error: 

{¶10} “I. THE TRIAL COURT ERRED IN ENTERING ITS JUDGMENT ENTRY 

AGAINST THE DEFENDANT[S]-APPELLANTS BECAUSE THE TRIAL COURT 

ERRED IN ITS INTERPRETATION OF THE PURPORTED AMENDMENT TO THE 

SUBDIVISION’S RESTRICTIVE COVENANTS AND IN ITS APPLICATION OF THOSE 

COVENANTS TO DEFENDANTS-APPELLANTS’ HOME.” 

I. 

{¶11} In their sole Assignment of Error, appellants argue the trial court erred in 

holding them responsible for annual assessments to the homeowners association via 

the 2007 amendments to the original restrictive covenants. We agree. 

{¶12} Restrictive covenants in deeds are generally interpreted by those rules 

used to interpret contracts. McBride v. Behrman (1971), 28 Ohio Misc. 47, 272 N.E.2d 

181, 57 O.O.2d 77 (additional citations omitted). In the case of contracts, deeds or 

other written instruments, the construction of the writing is a matter of law which is 

reviewed de novo. See Martin v. Lake Mohawk Property Owner's Ass'n., Carroll 

App.No. 04 CA 815, 2005-Ohio-7062, ¶ 23, citing Long Beach Assn., Inc. v. Jones
Licking County, Case No. 11 CA 40 5

(1998), 82 Ohio St.3d 574, 576, 697 N.E.2d 208. Under a de novo review, an appellate 

court may interpret the language of the contract substituting its interpretation for that of 

the trial court. Witte v. Protek Ltd., Stark App.No. 2009CA00230, 2010-Ohio-1193, ¶ 6, 

citing Children's Medical Center v. Ward (1993), 87 Ohio App.3d 504, 622 N.E.2d 692. 

{¶13} Ohio’s legal system “does not favor restrictions on the use of property.” 

Driscoll v. Austintown Assoc. (1975), 42 Ohio St.3d 263, 276. “The general rule, with 

respect to construing agreements restricting the use of real estate, is that such 

agreements are strictly construed against limitations upon such use, and that all doubts 

should be resolved against a possible construction thereof which would increase the 

restriction upon the use of such real estate.” Bove v. Geibel (1959), 169 Ohio St. 325, 

159 N.E.2d 425, paragraph one of the syllabus. Furthermore, “[i]f the covenant's 

language is indefinite, doubtful, and capable of contradictory interpretations, the court 

must construe the covenant in favor of the free use of land.” Farrell v. Deuble, 175 

Ohio App.3d 646, 888 N.E.2d 514, 2008-Ohio-1124, ¶ 11, citing Houk v. Ross (1973), 

34 Ohio St.2d 77, 63 O.O.2d 119, 296 N.E.2d 266, paragraph two of the syllabus. 

{¶14} Appellants argue that the original 1998 restrictive covenants, by their 

express language, cannot be amended until the year 2037. They further argue, in the 

alternative, that the 2007 amendment did not propose to simply amend the language of 

the existing covenants -- i.e., "to change said covenants in whole or in part" - as set 

forth in the original Declaration; instead, the Amendment purported to "add" new 

obligations to the subdivision covenants. 

{¶15} The key language of Article II(A) of the original covenants states that they 

“shall be binding on all Owners of the above-described real estate until January 1, 
Licking County, Case No. 11 CA 40 6

2037, after which time said covenants shall be automatically extended for successive 

periods of ten (10) years, unless an instrument signed by a majority of the Lot Owners 

is recorded, agreeing to change said covenants ***.” 

{¶16} The primary question before us is whether or not the above phrase 

beginning with “unless” expresses an intention by the drafters that any changes to the 

covenants are permitted only “after which time,” i.e., January 1, 2037. Appellant directs 

us to the “last-antecedent rule” of contract interpretation, which states that referential 

and qualifying words and phrases, where no contrary intention appears, refer solely to 

the last antecedent. See Wohl v. Swinney, 118 Ohio St.3d 277, 279, 2008-Ohio-2334. 

{¶17} Upon review, we hold Article II(A), when strictly construed and subjected 

to the last-antecedent rule, does not permit owner-initiated changes to the 1998 

restrictive covenants pertaining to the Cumberland Subdivision prior to the January 1, 

2037 limitation stated therein. Accordingly, the trial court erred as a matter of law in 

applying the homeowners association restrictions and fees to appellants. 

 
Licking County, Case No. 11 CA 40 7

{¶18} Appellants’ sole Assignment of Error is sustained. 

{¶19} For the reasons stated in the foregoing opinion, the judgment of the 

Municipal Court of Licking County, Ohio, is hereby reversed. 

By: Wise, J. 

Farmer, J. concurs. 

Hoffman, P. J., concurs separately. 

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 JUDGES 

JWW/d 1018 

 
Licking County, Case No. 11 CA 40 8

Hoffman, P.J., concurring 

(¶20) I do not disagree with the majority’s application of the “last-antecedent 

rule” to the restrictive covenant in the case sub judice. However, I would go further and 

find the attempted change constituted more than a mere amendment. It attempted to 

add new obligations to the subdivision covenants. I would find the purported 

“amendment” unenforceable against Appellants also for this reason. 

 ________________________________ 

 HON. WILLIAM B. HOFFMAN 
Licking County, Case No. 11 CA 40 9

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CUMBERLAND TRAIL HOMEOWNERS : 

ASSOCIATION, INC. : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

PETER F. BUSH, et al. : 

 : 

 Defendants-Appellants : Case No. 11 CA 40 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Municipal Court of Licking County, Ohio, is reversed. 

 Costs assessed to appellee. 

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 JUDGES