DocketNumber: No. 12813
Citation Numbers: 525 N.E.2d 26, 37 Ohio App. 3d 169
Judges: MAHONEY, J.
Filed Date: 4/1/1987
Status: Precedential
Modified Date: 1/13/2023
Plaintiff-appellant, Aurora Shores Homeowners Association ("Aurora Shores") appeals a declaratory judgment denying it the right to demand that defendants Harry and Mary Hardy remove a chain-link dog run on their premises for noncompliance with allotment covenants and restrictions. We affirm.
The Hardys live within Aurora Shores, a planned urban development. Section 1, Article X of the "Covenants and Restrictions for Aurora Shores" provides as follows:
In April 1984, the Hardys erected a six foot by twelve foot concrete dog run surrounded by a chain-link fence, at the rear of their residential lot. The Hardys never notified the Aurora Shores Architectural Committee nor sought its approval in any way. This lawsuit was not filed until October 30, 1985. The trial court held that:
"5. Pursuant to Article X, Section 1, no approval of the Architectural Committee or other entity within Aurora Shores is required.
"6. Such fence and concrete pad are therefore by the express language of Article X deemed to have been constructed in full compliance with Article X."
Aurora Shores contends that a request for approval prior to construction is mandatory under Article X.
We concur with the trial court in its interpretation of Article X. The failure to file suit to enjoin the construction within the time provided is tantamount to approval. Such a ruling comports with the general rule set forth in Driscoll v. AustintownAssociates (1975),
"`The general rule, with respect to construing agreements restricting the use of real estate, is that such agreements are strict[l]y 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.'"
The assignment of error is overruled and the judgment is affirmed.
Judgment affirmed.
QUILLIN, P.J., and CACIOPPO, J., concur. *Page 171