Fairport Real Estate L.L.C. v. Nautical Ridge Condominium Owners' Assn., Inc.

[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, : OPINION

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
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

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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

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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-Ohio-

5461, ¶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

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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.

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 {¶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 seven-

year 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

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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

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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 (‘Non-
Added 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

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“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.

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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.

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