"They let my neighbour do it" just got much harder to argue in Ohio
"They let my neighbour do it" just got much harder to argue in Ohio
2026-09-15 · Ohio · Courts
Ohio's Tenth District has set a demanding standard for the selective-enforcement defence, and in the same opinion told associations that their attorney-fee clause does not reach the cost of defending a discrimination complaint.1
Whitney Woods Homeowners' Association, Inc. v. Steagall, 2025-Ohio-2784, No. 24AP-583, was decided August 7, 2025 in Franklin County.
The association sued the Steagalls over a “No Trespassing” sign, unscreened trash and construction debris, and a patio, boundary walls and replacement trees installed without architectural pre-approval. The Steagalls had earlier filed a HUD racial-discrimination claim alleging the association enforced its covenants selectively against them. The members then passed a $500-per-lot special assessment to fund the association's HUD legal fees, and the Steagalls refused to pay it.
The waiver standard
The court began from the principle owners usually like:
“Generally, restrictive covenants limiting the use of land are not favored and are to be construed strictly against the restriction and in favor of free use of land.” (¶ 18)
But strict construction is not abandonment. On waiver: “[W]aiver is a voluntary relinquishment of a known right…The party asserting existence of a waiver bears the burden of proving it.” (¶ 23)
And on what the Steagalls had actually produced:
“As to the specific restrictions set forth in the Declaration, this case is more like DeRosa than Landen Farm, because at most the Steagall Affidavit would establish a single violation of the signage restriction by another Whitney Woods homeowner, no violations of the storage restrictions, and no similar violations of the fence restriction.” (¶ 29)
Conclusion: “We conclude the Steagalls failed to demonstrate that the Association waived its right to enforce the restrictions contained in the Declaration.” (¶ 34)
The test is not whether the board has ever missed a violation. It is whether the neighbourhood's character has changed so substantially that the restriction has lost substantial value.
Two of the three violations here were structures built without approval. Our Ohio architectural review page covers that requirement.
The half of the ruling that cost the association money
The association cross-appealed the refusal to award it the attorney fees it had spent defending the HUD discrimination claim — the very fees the $500-per-lot special assessment had been levied to cover. It lost.
“The Declaration clearly provides that the Association may recover attorney fees and costs incurred when enforcing the restrictions contained in the Declaration—i.e., when compelling a homeowner to comply with those restrictions.” (¶ 60)
Defending a fair-housing complaint is not enforcing a restriction. The members absorb that cost, not the accused owner.
That is a significant practical limit. In Ohio, an owner who responds to enforcement by filing a discrimination complaint creates a cost the association cannot shift onto them even if the association wins everything. Boards that special-assess to fund a discrimination defence should expect to eat it. Our Ohio fining authority page covers the enforcement costs that are recoverable.
How the two halves fit together
Read as a whole, the opinion tells Ohio boards that they are on strong ground enforcing covenants and on weak ground financing the fallout.
Enforcement itself survives an ordinary inconsistency defence. One neighbour with a sign does not waive the signage restriction. That is genuinely protective of boards, most of which enforce imperfectly because they are volunteers looking at a hundred lots.
But the moment enforcement produces a discrimination claim — and selective enforcement is exactly the allegation that produces one — the association is funding that defence from the membership, with no recovery, whatever the outcome.
What that means for enforcement policy
Inconsistency is survivable; visible inconsistency along a protected characteristic is not. The waiver defence failed here on the evidence. The HUD complaint did not go away, it just got paid for by everyone. A board's exposure is not the covenant — it is the pattern of who gets a letter.
Keep an enforcement log. Date, lot, violation, notice sent, response, resolution. A board that can show it sent letters to eleven lots for the same violation has an answer to both the waiver defence and the discrimination allegation. A board that cannot has neither.
Enforce the architectural pre-approval requirement at the application stage. Two of the three violations here were structures built without pre-approval. That is the cheapest possible enforcement point and the most defensible, because the rule is procedural rather than aesthetic and the record is the association's own file.
Read your fee clause literally. Most Ohio declarations shift fees incurred “in enforcing” the restrictions. That phrase will be read to mean what it says. If a board wants broader indemnity, that is an amendment, not an interpretation — and a court will construe the clause it finds, not the one the board wishes it had.
Price the discrimination-defence risk into the enforcement decision. Not as a reason to stop enforcing, but as a reason to make sure that when the board does enforce, it can produce the log.
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