[Cite as Fairport Real Estate L.L.C. v. Nautical Ridge Condominium Owners' Assn., Inc., 2018-Ohio-791.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

FAIRPORT REAL ESTATE LLC, : O P I N I O N 

 Plaintiff-Appellant, : 

 CASE NO. 2017-L-048

 - vs - : 

NAUTICAL RIDGE CONDOMINIUM 

OWNERS’ ASSOCIATION, INC., et al., 

: 

 Defendant-Appellee. : 

Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CV 002224. 

Judgment: Affirmed in part and reversed in part; remanded. 

David M. Dvorin, 30195 Chagrin Boulevard, Suite 300, Pepper Pike, OH 44124 (For 

Plaintiff-Appellant). 

Steven M. Ott, Amanda Barreto, & Lindsey Wrubel, Ott & Associates Co., LPA, 1300 

East Ninth Street, Suite 1520, Cleveland, OH 44114; Joseph Ferrante & Lavell Payne, 

Nationwide Insurance Company, 2 Summit Park Drive, Suite 540, Independence, OH 

44131 (For Defendant-Appellee). 

TIMOTHY P. CANNON, J. 

{¶1} Appellant, Fairport Real Estate LLC (“Fairport”), appeals from the March 13, 

2017 judgment of the Lake County Court of Common Pleas. The dispute before the trial 

court was whether Fairport has easement rights over property owned by appellee, 

Nautical Ridge Condominium Owners’ Association, Inc. (“the Association”) for ingress 

and egress and for the use of a retention basin and sanitary sewer line and whether the 

Association has easement rights over Fairport’s property for utility lines. The trial court 
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denied Fairport’s motion for summary judgment and granted, in part, the Association’s 

motion for summary judgment. For the reasons that follow, the trial court’s judgment is 

affirmed in part and reversed in part. 

{¶2} In April 2006, non-party Nautical Ridge Development, LLC (“NRD” or 

“Declarant”) recorded a Declaration of Condominium Ownership (“Declaration”) for an 

expandable condominium development (“Development”) in Fairport Harbor, Ohio. The 

Declaration provided for the establishment of the Association (appellee herein). NRD 

owned both the Phase I Parcel (“the Property”) and the contiguous property defined in 

the Declaration as the “Additional Lands.” The Declaration gave NRD the ability (but not 

the obligation) to submit all or a portion of the Additional Lands to the Development. The 

Additional Lands are landlocked by the Development’s condominium units. NRD, as the 

Declarant, therefore reserved easement rights over the Property for ingress, egress, 

utilities, and construction “for the benefit of and use by Declarant, and its * * * successors 

and assigns[.]” 

{¶3} After completing several phases, NRD abandoned the Development and 

conveyed the remaining Additional Lands to Fifth Third Bank, N.A. (“Fifth Third”) by 

General Warranty Deed in November 2009. The General Warranty Deed designated 

Fifth Third as NRD’s “Successor Declarant” under the Declaration with regard to the 

Additional Lands and declared Fifth Third to “stand in the same relation” to the Additional 

Lands as NRD. 

{¶4} On October 14, 2015, Fairport (appellant herein) received conditional 

approval from the Planning Commission for the Village of Fairport Harbor to build 

apartments on the Additional Lands. To obtain approval, Fairport was required to either 

obtain permission from the Association or a court order to use the sanitary sewer line that 
 3

services the Development, to use the Association’s retention basin, and to use the 

roadway through the Development. 

{¶5} On November 25, 2015, Fifth Third transferred the Additional Lands to 

Fairport through a Quitclaim Deed. On June 10, 2016, Fifth Third recorded an 

Assignment designating Fairport as its Successor Declarant under the Declaration and 

declaring Fairport to “stand in the same relation” to the Additional Lands as Fifth Third. 

{¶6} The Association refused to permit Fairport to use its retention basin, 

roadways, or sanitary sewer lines. Thus, Fairport filed suit and, in its amended complaint, 

requested a declaratory judgment that it has easement rights, either express or implied 

by necessity, to use the sanitary sewer line, retention basin, and roadways (or, in the 

alternative, an order that the Association remove any utility lines from the Additional 

Lands). Fairport also requested preliminary and permanent injunctions allowing it to 

connect with and use the sanitary sewer line and storm piping, to use the retention basin, 

and to use the private roads for ingress and egress. Fairport raised additional claims for 

breach of contract, interference with the purported easements, nuisance, and trespass 

over the Additional Lands by the Association’s utility lines. The amended complaint also 

named Lake County Sanitary Engineer as a defendant. 

{¶7} The Association filed a counterclaim, requesting the following declaratory 

judgments: that the development period in the Declaration has ended; that Fairport is not 

a Successor Declarant and has no easement rights to use the sanitary sewer line, 

retention basin, and roadways; that Fairport cannot tie into the sanitary sewer line per the 

Lake County Utilities Department Rules; that the Association has easement rights, implied 

by prior use, to use the utility lines that run under the Additional Lands; and that if Fairport 

does have any easement rights, it must share expenses with the Association. The 
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Association also sought preliminary and permanent injunctions to prevent Fairport from 

interfering with the utility lines that run under the Additional Lands. 

{¶8} Fairport and Lake County Sanitary Engineer entered into an agreement, 

reflected in an agreed judgment entry issued by the trial court on October 24, 2016, 

wherein Fairport was permitted to tie into or otherwise connect to the existing sanitary 

sewer line on the Additional Lands owned by Fairport. 

{¶9} Fairport moved for summary judgment on the basis that it has express 

easement rights either as owner of the Additional Lands or as a Successor Declarant 

under the Declaration or, in the alternative, that it has implied easements based on prior 

use because the original plan for developing the Property included use of the roads and 

retention basin by the Additional Lands. It did not move for summary judgment on the 

basis that it has implied easements by necessity, as was pled in its amended complaint. 

{¶10} The Association moved for summary judgment on the basis that Fairport 

has no express easement rights because it is not a Successor Declarant and that the 

Association has an implied easement over the Additional Lands for the utilities. The 

Association also argued that Fairport should not be permitted to tie into the sanitary sewer 

lines, despite the agreed judgment entry with Lake County Sanitary Engineer, because 

doing so violates the Lake County Utilities Department Rules. 

{¶11} The trial court denied Fairport’s motion and rendered judgment in favor of 

the Association on Fairport’s amended complaint. The trial court granted the 

Association’s motion in part and denied it in part. The trial court held Fairport is not a 

Successor Declarant under the Declaration and has no easement rights for use of the 

sanitary sewer lines, retention basin, and roadways, and that the development period in 

the Declaration has ended. The trial court further held the Association has an implied 
 5

easement to use the utilities that run under the Additional Lands and that Fairport is 

permanently enjoined from interfering with them. 

{¶12} Fairport noticed an appeal from this entry and raises three assignments of 

error for our review: 

[1.] The trial court committed prejudicial error in denying [Fairport’s] 

motion for summary judgment and granting in part [the Association’s] 

motion for summary judgment based upon the trial court’s mistaken 

opinion that [Fairport] LLC did not have express easement rights 

under the Declaration either as the owner of the Additional Lands or 

as a successor Declarant. 

[2.] The trial court committed prejudicial error in denying [Fairport’s] 

motion for summary judgment and granting in part [the Association’s] 

motion for summary judgment because of the trial court’s mistaken 

opinion that [Fairport] did not have an implied easement to use the 

road, retention basin and utilities located on [the Association’s] 

property. 

[3.] The trial court committed prejudicial error in denying [Fairport’s] 

motion for summary judgment and granting in part [the Association’s] 

motion for summary judgment based upon the trial court’s mistaken 

opinion that [the Association] has an implied easement to use the 

utilities [sic] lines located on [Fairport’s] property. 

{¶13} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) the 

evidence shows “that there is no genuine issue as to any material fact” to be litigated, (2) 

“the moving party is entitled to judgment as a matter of law,” and (3) “it appears from the 

evidence * * * that reasonable minds can come to but one conclusion and that conclusion 

is adverse to the party against whom the motion for summary judgment is made, that 

party being entitled to have the evidence * * * construed most strongly in the party’s favor.” 

{¶14} A trial court’s decision to grant summary judgment is reviewed by an 

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio 

St.3d 102, 105 (1996). “Under this standard, the reviewing court conducts an 

independent review of the evidence before the trial court and renders a decision de novo, 
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i.e., as a matter of law and without deference to the conclusions of the lower court.” 

Jackson v. Moissis, 11th Dist. Geauga No. 2012-G-3070, 2012-Ohio-5599, ¶20 (citation 

omitted). 

{¶15} Under its first assignment of error, Fairport argues the trial court erred by 

failing to conclude that Fairport has express easement rights under the Declaration as the 

Successor Declarant and also as the owner of the Additional Lands. 

{¶16} Contract principles apply to a court’s interpretation of a condominium 

development declaration. See Williams Creek Homeowners Assn. v. Zweifel, 10th Dist. 

Franklin No. 07AP-689, 2008-Ohio-2434, ¶41, citing Nottingdale Homeowners’ Assn., 

Inc. v. Darby, 33 Ohio St.3d 32 (1987). “In construing the terms of any contract, the 

principal objective is to determine the intention of the parties.” Hamilton Ins. Serv., Inc. 

v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273 (1999) (citation omitted). “We presume 

the intent of the parties to a contract resides in the language used in the written 

instrument.” Oryann, Ltd. v. SL & MB, LLC, 11th Dist. Lake No. 2014-L-119, 2015-Ohio5461, ¶25, citing Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130 (1987), paragraph one of 

the syllabus. “[A] court may not interpret the contract in a manner inconsistent with the 

clear language of the instrument.” Id. at ¶26, citing Shifren v. Forrest City Ents., Inc., 64 

Ohio St.3d 635, 638 (1992). 

{¶17} “If a contract is clear and unambiguous, then its interpretation is a matter of 

law and there is no issue of fact to be determined. However, if a term cannot be 

determined from the four corners of a contract, factual determination of intent or 

reasonableness may be necessary to supply the missing term.” Inland Refuse Transfer 

Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 322 (1984), citing 
 7

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978) and Hallet & Davis Piano 

Co. v. Starr Piano Co., 85 Ohio St. 196 (1911). 

Successor Declarant 

{¶18} We initially analyze whether Fairport is a Successor Declarant under the 

Declaration. The Declaration provides that NRD is “hereinafter referred to as ‘Declarant’” 

and that “the provisions of this Declaration shall constitute covenants to run with the land 

and shall be binding on Declarant and each successor of Declarant who stands in the 

same relation to the Property or Additional Lands as Declarant and its and their respective 

* * * successors and assigns * * *.” 

{¶19} Article XI, section (A), of the Declaration states that “Declarant hereby 

reserves the right and option, but not the obligation, to submit the Additional Lands, or 

any portion or portions thereof * * * to the provisions of this Declaration and the [Ohio 

Condominium] Act.” (Emphasis added). Section (C) of Article XI provides that “Declarant 

has a period of seven (7) years from the date the Declaration is filed for record to expand 

the Condominium Property to include the Additional Lands. Other than the expiration of 

the time limit set forth above, there are no circumstances that will terminate the 

Declarant’s right to expand the Condominium Property to include the Additional Lands.” 

Further, under section (M) of Article XI, “Declarant reserves the right to assign its rights 

and option to expand the Condominium Property to include the Additional Lands, or any 

portion thereof, to any successor of the Declarant who stands in the same relationship to 

the Condominium Development as the Declarant.” 

{¶20} Neither the Declaration nor the Ohio Condominium Act defines “Declarant” 

or “successor of Declarant,” nor do they explain what is meant by “stands in the same 

relation to.” The Ohio Condominium Act uses these terms, however, in its definition of 
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“Developer”: “‘Developer’ means any person who directly or indirectly sells or offers for 

sale condominium ownership interests in a condominium development. ‘Developer’ 

includes the declarant of a condominium development and any successor to that 

declarant who stands in the same relation to the condominium development as the 

declarant.” R.C. 5311.01(S). 

Fifth Third as Successor Declarant 

{¶21} After completing several phases, NRD abandoned the Development and 

conveyed the remaining (landlocked) Additional Lands to Fifth Third by General Warranty 

Deed in lieu of foreclosure. This conveyance took place in November 2009, which was 

before expiration of the seven-year time limit on the Declarant’s right to expand the 

Condominium Property. The Deed designated Fifth Third as NRD’s “Successor 

Declarant” under the Declaration with regard to the Additional Lands and declared Fifth 

Third to “stand in the same relation” to the Additional Lands as NRD. Specifically, the 

Deed provides as follows: 

Grantor [NRD] does hereby (i) designate Grantee [Fifth Third] as 

Grantor’s successor ‘Declarant’ under the Declaration of 

Condominium Ownership for the Nautical Ridge Condominiums, 

which was filed for record with the Lake County, Ohio Recorder on 

April 20, 2006 * * *, with regard to the Premises, and solely with 

regard to the Premises, Grantee being hereby declared by Grantor 

to stand in the same relation to the Premises (which constitutes a 

portion of the ‘Additional Lands’ as that term is defined in the 

Declaration) as does Grantor, and (ii) assign, transfer, and set over 

to Grantee, and by acceptance and recording of this Deed Grantee 

does hereby accept and assume, all of Grantor’s rights as ‘Declarant’ 

under the Declaration with regard to the Premises, and specifically 

all of ‘Declarant’s’ rights with regard to the Premises under Article XI 

of the Declaration; provided, however, that in no event shall the 

foregoing designation and/or assignment and assumption constitute 

or in any way be deemed to be Grantee’s assumption of any liabilities 

which Grantor has in connection with the Declaration, the 

Condominium Property (as defined in the Declaration), or the 

Common Elements (as defined in the Declaration), including, without 

limitation, any warranties. 
 9

{¶22} The Association argues this designation and assignment of Declarant’s 

rights was ineffective because it did not also transfer the obligations under the Declaration 

to Fifth Third. The limiting language in the Deed, however, states that Fifth Third does 

not assume the Grantor’s liabilities (the Grantor being defined in the Deed as NDR (i.e., 

the developer)); it does not state that Fifth Third declines to assume the Declarant’s

liabilities. In other words, Fifth Third assumed the liabilities under the Declaration as the 

Successor Declarant, but did not assume liability for any past action or omission of NDR 

during the time NDR was the Declarant. This does not render the assignment ineffective; 

in fact, it is legally required under R.C. 5311.05. 

{¶23} R.C. 5311.05(C)(15) was added in 2004 and requires the Declaration for an 

expandable condominium property to contain a statement that “a purchaser who acquires 

the property at a sheriff's sale or by deed in lieu of a foreclosure, is not liable in damages 

for harm caused by an action or omission of the developer or a breach of an obligation 

by the developer.” (Emphasis added.) As one treatise explains, the purpose of this 

provision is to protect “a lender who foreclosed upon the additional property with the 

expectation that it could ‘complete’ the project, or could sell the property to another builder 

who would want to complete the project, without incurring responsibility for the acts or 

omissions (not to mention the warranty obligations) of the original developer.” Kuehnle & 

Williams, Baldwin’s Ohio Condominium Law, Section 13:3, 151 (2013). The trial court’s 

and the Association’s reliance on McKnight v. Bd. of Directors, 32 Ohio St.3d 6 (1987) is 

therefore misplaced, as R.C. 5311.05(C)(15) was not added to the Ohio Condominium 

Act until 2004, well after the Ohio Supreme Court’s 1987 opinion. 
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{¶24} The General Warranty Deed effectively assigned the Declarant’s rights 

under the Declaration from NRD to Fifth Third as the Successor Declarant. The trial 

court’s conclusion to the contrary was in error. 

Fairport as Successor Declarant 

{¶25} On November 25, 2015, Fifth Third transferred title to the Additional Lands 

to Fairport through a Quitclaim Deed. This occurred well after expiration of the sevenyear time limit on the Declarant’s right to expand the Condominium Property. Over six 

months later, on June 10, 2016, Fifth Third recorded an Assignment designating Fairport 

as its Successor Declarant under the Declaration and declaring Fairport to “stand in the 

same relation” to the Additional Lands as Fifth Third. Specifically, the language of 

assignment provides: 

Effective as of the date of the filing of the Deed transferring title of 

the Premises from Assignor [Fifth Third] to Assignee [Fairport] with 

the Lake County Recorder’s Office (the ‘Effective Date’), Assignor (i) 

designated its Interest to Assignee as Assignor’s successor 

‘Declarant’ under the Declaration, with regard to the Premises, and 

solely with regard to the Premises, Assignee being declared by 

Assignor to stand in the same relation to the Premises (which 

constitutes a portion of the ‘Additional Lands’ as that term is defined 

in the Declaration) as did Assignor, and (ii) assigned, transferred, 

and set over to Assignee, and by the acceptance and recording of 

the Deed, Assignee accepted and assumed, all of Assignor’s rights 

as ‘Declarant’ under the Declaration with regard to the Premises, 

including, without limitation, all of ‘Declarant’s’ rights with regard to 

the Premises under Article XI of the Declaration. Assignee accepts 

Assignor’s right, title and interests as expressly set forth in this 

Assignment without warranties or covenants of any kind. 

{¶26} The Association argues this designation and assignment of Declarant’s 

rights was ineffective because Fairport does not “stand in the same relation” to the 

Additional Lands as did NRD, the original Declarant. The Association asserts Fairport 

does not “stand in the same relation” because it has no intention of submitting the 
 11

Additional Lands to the condominium form of ownership and because the seven-year time 

limit within which to do so has expired. 

{¶27} One of the Declarant’s rights under the Declaration is found in Article XI of 

the Declaration: “Declarant hereby reserves the right and option, but not the obligation, 

to submit the Additional Lands, or any portion or portions thereof * * * to the provisions of 

this Declaration and the [Ohio Condominium] Act.” It further provides, however, that the 

“Declarant is not obligated to expand the Condominium Property to include all or any 

portion of the Additional Lands beyond the initial forty-five (45) Units” and the “Declarant 

is not obligated to construct improvements on the Additional Lands.” Finally, it allows 

that, “[i]f the Declarant does not submit all or a portion of the Additional Lands to the 

Condominium Development, the restrictions shall not apply to any portion of the 

Additional Lands that is not so submitted.” 

{¶28} If NRD had remained the Declarant without ever assigning the 

accompanying rights to a successor, it would have had the right, but not the obligation, to 

include the Additional Lands in the Development up and until April 20, 2013, i.e., seven 

years after the Declaration was recorded. After April 20, 2013, NRD would no longer 

have been permitted to include the Additional Lands in the Development. There is no 

provision in the Declaration or the Ohio Condominium Act, however, that states other 

declarant rights provided in a declaration are terminated upon the expiration of the 

development period. Thus, NRD would have remained the Declarant and could have 

exercised those other rights under the Declaration. 

{¶29} Similarly, Fairport no longer has the right and option to include the 

Additional Lands in the Development because the time limit has expired. Nevertheless, 

it has been assigned “all of Assignor’s rights as ‘Declarant’ under the Declaration with 
 12

regard to the Premises.” Thus, Fairport “stands in the same relation to” the Additional 

Lands as did NRD. 

{¶30} Fairport was effectively assigned the Declarant’s rights from Fifth Third and 

is a Successor Declarant under the Declaration. The trial court’s conclusion to the 

contrary was in error. 

Express Easement Rights 

{¶31} As Fairport may exercise the rights of a Successor Declarant, we consider 

what easement rights a Successor Declarant has under the Declaration. Fairport 

specifically asserts it has easement rights to use the sanitary sewer line, retention basin, 

and roadways, and has the right of ingress and egress over the roadways. 

{¶32} Article III of the Declaration sets forth the following provisions as to 

easements, in relevant part: 

Declarant hereby creates by grant or reservation, as the case may 

be, in perpetuity, for its benefit and for the benefit of each Unit Owner, 

each mortgagee in whose favor a mortgage shall be granted with 

respect to any Unit, the Association, and to any other person now 

having or hereafter having an interest in the Phase I Parcel and the 

Additional Lands or any part thereof, and the respective heirs, 

devisees, executors, administrators, personal representatives, 

successors and assigns of the foregoing persons, the following 

nonexclusive rights and easements as and to the specified parties: 

(A) Roadway, Utility and Other Easements. To the Declarant and 

the Association, the right and easement to construct, install, repair, 

replace, relocate, operate and maintain roadways, driveways, 

sidewalks, water mains with service connections, storm and sanitary 

sewer lines, steam, electric, gas and telephone lines, conduits, and 

transmission and meter devices and other utilities, in, on, under 

and/or over the Condominium Property; * * *. 

* * * 

(G) Reservation by Declarant of Easements for Ingress and Egress, 

Utilities and Construction. The Declarant herein hereby reserves 

unto itself [f]or as long as the Declarant owns a Condominium 

Ownership Interest in the Condominium Property or Additional Lands 
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the easement and right for the benefit of and use by Declarant, and 

its agents, officers, directors, employees, licensees, servants, 

tenants, personal representatives, successors and assigns for 

ingress and egress by foot, automobile and otherwise and for utility 

and facility purposes, over, through and under the Condominium 

Property and any part thereof other than a Unit not owned by the 

Declarant. The Declarant further reserves easements over 

Condominium Property for the benefit of the Additional Lands to 

establish the grade of the Additional Lands and for necessary access 

to construct the Additional Lands Buildings and other improvements 

upon the Additional Lands. 

* * * 

(K) Easement Rights. The above easements are to be enjoyed in 

common with the grantees, their heirs, executors, administrators, 

successors and assigns, with the right reserved in the Declarant, its 

successors and assigns, to grant, assign, or convey or dedicate to 

public use all or a portion of the easement rights herein to one or 

more assignees or grantees as an appurtenance to the 

Condominium Property and Additional Lands, without it being 

considered by the grantees, their heirs, executors, administrators, 

successors and assigns, as an additional burden on said easement 

and/or the Condominium Property. Any assignment, conveyance or 

dedication of said easement rights by the Declarant may be made at 

the same time or at successive times, and the residuary easement 

rights of the Declarant shall not cease or determine until the 

Declarant has no remaining interest, of record, in the Condominium 

Development or Additional Lands. However, the rights of all 

assignees or grantees in the reserved easements shall remain in full 

force and effect. 

* * * 

(M) Sharing of Expenses. In the event all or any portion of the 

Additional Lands is not added to the Condominium Property (‘NonAdded Property’), and such Non-Added Property is subsequently 

developed and improved by the construction thereon of dwelling 

units, then the fair share of the cost and expense of repairing, 

replacing, relocating, operating and maintaining roadways, 

sidewalks, water mains and service connections, storm and sanitary 

sewer lines, a retention basin, if any, and drainage thereto, steam, 

electric, gas, telephone and cable television lines, conduits, and 

transmission and meter devices and other utilities and facilities 

installed on, in, over or under the Condominium Property and/or the 

Additional Lands and which are utilized in common by the 

Condominium Property and the Non-Added Property shall be 

apportioned among all of the Unit Owners and/or the owner(s) of the 
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Non-Added Property, based on the total number of Units situated 

within the Condominium Property plus the total number of dwelling 

units actually constructed on the Non-Added Property (e.g., the total 

number of condominium units, if the Non-Added Property is 

submitted to condominium ownership; the total number of residences 

if the Non-Added Property is improved with single-family residences; 

the total number of rental units if the Non-Added Property is improved 

with rental units); such fair share of such expenses attributable to the 

Non-Added Property shall be determined by a fraction, the 

numerator of which shall be the number of dwelling units constructed 

on said property and the denominator of which shall be the total 

number of dwelling units constructed on the Condominium Property, 

and the Non-Added Property. The Non-Added Property shall not be 

chargeable hereunder unless and until the same is improved by the 

construction thereon of dwelling Units and such dwelling Units utilize 

the above improvements. If all or a portion of the Additional Lands 

is not added to the Condominium Property, Declarant reserves the 

right to execute and record a Declaration of Easements establishing 

a mechanism for the governance of the rights and obligations set 

forth in this subsection (M). 

Sanitary Sewer Lines, Roadways, and Other Utilities 

{¶33} It is clear from this language that the successors and assigns of the original 

Declarant have the right and easement under section (A) to construct, install, repair, 

replace, relocate, operate and maintain the roadways, storm and sanitary sewer lines, 

and other utilities that run in, on, under, or over the Property. As stated in the preamble 

to Article III, these particular easement rights were granted in perpetuity. Thus, Fairport, 

as the Successor Declarant, has express easement rights, jointly with the Association, to 

construct, install, repair, replace, relocate, operate, and maintain the roadways, storm and 

sanitary sewer lines, and other utilities. The trial court erred in concluding otherwise. 

Ingress and Egress 

{¶34} The easement rights for ingress and egress under section (G) “by foot, 

automobile, and otherwise,” on the other hand, were reserved to the original Declarant 

and its successors and assigns only for as long as that party owns a condominium 

ownership interest in the Property or Additional Lands. The statutory definition of 
 15

“condominium ownership interest” is “a fee simple estate or a ninety-nine-year leasehold 

estate, renewable forever, in a unit, together with an appurtenant undivided interest in the 

common elements.” R.C. 5311.01(N). Fairport does not own a condominium ownership 

interest in the Property or Additional Lands. In fact, no one owns a condominium 

ownership interest in the Additional Lands. Therefore, the express easement right for 

ingress and egress has expired. 

Retention Basin 

{¶35} The trial court held: “By its plain language the cost-sharing provision in the 

Declaration does not grant any easement rights, and the express easements in the 

Declaration do not include an easement for use of the retention basin.” We disagree, 

however, that this justified granting summary judgment on this issue in favor of the 

Association. 

{¶36} Retention basins are part of a system for managing storm water. Section 

(A) of Article III does not specifically mention a retention basin, but it does provide an 

easement for storm sewer lines, conduits, and “other utilities.” Additionally, section (M) 

of Article III specifically mentions a retention basin and anticipates that it would be shared 

by the two parcels of land. Section (M) provides for the sharing of expenses, as a result 

of the easements, between the condominium unit owners and the owner(s) of any of the 

Additional Lands that were not added to the Development. One expense the owners are 

to apportion is the “fair share of the cost and expense of repairing, replacing, relocating, 

operating and maintaining * * * storm and sanitary sewer lines, a retention basin, if any, 

and drainage thereto[.]” It is clear, within the four corners of the Declaration, that the 

contracting parties intended the Declarant to include an easement right to use the 

retention basin, if any, on the Property. 
 16

Conclusion 

{¶37} Fairport’s first assignment of error has merit to the extent indicated. Fairport 

is a Successor Declarant and has express easement rights under the Declaration, as 

stated above, to construct, install, repair, replace, relocate, operate, and maintain the 

roadways, storm and sanitary sewer lines, and other utilities, including the retention basin. 

Fairport’s express easement rights for ingress and egress over the Property have expired. 

Implied Easement Rights 

{¶38} Under its second assignment of error, Fairport argues it has implied 

easement rights to use the roadways, sanitary sewer lines, and retention basin. This 

argument is now moot as it pertains to the retention basin and the right to construct, install, 

repair, replace, relocate, operate, and maintain the roadways, storm and sanitary sewer 

lines, and utilities. We continue, therefore, to Fairport’s argument only as it pertains to an 

implied easement for ingress and egress. 

{¶39} The trial court held: 

Because an implied easement creates a right of way over land which 

could have been effectuated by an express grant but was not, an 

express easement and an implied easement cannot exist 

simultaneously. Yowanski v. MDB Constr. Co., 7th Dist. Belmont No. 

09 BE 10, 2010-Ohio-4185, ¶21. As discussed above, the Declarant 

(NRD) had an express easement under the Declaration to use the 

roadway for ingress and egress, and therefore no implied easement 

was created at the time of severance and Plaintiff cannot claim an 

implied easement now. Tiller v. Hinton, 19 Ohio St.3d 66, 70, 482 

N.E.2d 946, 951 (1985). 

An implied easement and an express easement cannot exist simultaneously simply 

because when an express easement is granted there is no need to imply one. Yowanski, 

supra, at ¶21. This does not necessarily apply here, however, where the express 

easement has expired. 
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{¶40} Two types of implied easements are recognized in the law—those based 

on prior use and those based on necessity. One of the elements of an implied easement 

based on prior use is that the use shall have been so long continued and obvious or 

manifest as to show that it was meant to be permanent. Ciski v. Wentworth, 122 Ohio St. 

487 (1930), syllabus. We agree that an implied easement based on prior use cannot exist 

here because the express easement was granted with a temporal limitation—it was 

clearly not meant to be permanent and we cannot imply otherwise. Thus, it was not error 

for the trial court to deny summary judgment to Fairport on this basis. 

{¶41} It was error, however, for the trial court to grant summary judgment in favor 

of the Association on the basis that Fairport did not have any implied easement rights 

over the Property for ingress and egress. Neither party raised the issue of whether 

Fairport has an implied easement by necessity in their motions for summary judgment, 

although it was stated as a claim in Fairport’s complaint. 

{¶42} Fairport’s second assignment of error has merit to the extent indicated. The 

trial court did not err in its decision that Fairport does not have implied easement rights 

for ingress and egress based on prior use. The trial court erred, however, in granting 

summary judgment in favor of the Association on the issue of implied easement rights for 

ingress and egress, in general, because the arguments and evidentiary material were 

solely directed toward the prior use claim. On remand, the issue of whether there is an 

implied easement by necessity must be determined either in renewed motions for 

summary judgment or at trial. 

Conclusion 

{¶43} Under its third assignment of error, Fairport argues the trial court’s 

determination that the Association has implied easement rights to use the utility lines on 
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the Additional Lands is inequitable because it denied the same rights to Fairport. Based 

on our disposition of the first and second assignments of error, we find an argument based 

on equitability is moot and decline to address it herein. 

{¶44} The judgment of the Lake County Court of Common Pleas is affirmed in part 

and reversed in part, and the matter is remanded for further proceedings. On remand, 

the trial court must determine the issue of whether Fairport has an implied easement by 

necessity for ingress and egress over the Property. Additionally, the trial court must 

compute the sharing of expenses and maintenance of the roadways and utilities, etc., as 

provided in Article III, section (M) of the Declaration. 

CYNTHIA WESTCOTT RICE, J., 

COLLEEN MARY O’TOOLE, J., 

concur.