Your transfer-approval clause probably does not reach a gift
Your transfer-approval clause probably does not reach a gift
2026-09-15 · Ohio · Courts
A condominium unit passed by transfer-on-death affidavit. The association insisted its bylaws required board approval of the transferee. Three appeals later, the association was right about the fees and wrong about the clause.1
The Eleventh District decided the Tattershall One litigation in three instalments out of Portage County: 2025-Ohio-343 on February 3, 2025; 2025-Ohio-5570 on December 15, 2025; and 2026-Ohio-3510 on September 8, 2026.
The clause did not reach the transfer
The association's bylaws conditioned a sale and conveyance on board approval of the purchaser. The court read that literally:
“The provisions set forth in Article XI allow for an owner of a unit to 'sell and convey' his unit to a 'purchaser' who has been designated as acceptable by the board of managers. It does not, however, address a situation in which the owner seeks to gift the unit to someone other than a family member.” (2025-Ohio-343, ¶ 35)
That is the standard Ohio approach to restrictions on alienation: strict construction against the restriction. A clause drafted around a sale to a purchaser governs sales to purchasers. It does not govern gifts, and it does not govern a transfer-on-death designation.
The amendment procedure survived
The owners also attacked 2022 bylaw amendments adopted by circulated notarised signatures rather than at a meeting. The court upheld them:
“We recognize that the amended bylaws were adopted through signatures from the various condominium owners, signed and notarized on various days, tending to show the bylaws were not amended at a meeting. Nonetheless, we find no error.” (¶ 25)
And the association's fee entitlement withstood an unclean-hands attack: “even applying the doctrine, we find no error by the trial court in determining that an award of attorney fees was appropriate in this matter. We do not find that Tattershall took actions that caused them to have unclean hands.” (¶ 55)
Then the fees ran for another nineteen months
The second appeal was dismissed for want of a final appealable order, because the fee amount was still unresolved. The third affirmed a fee award of $21,537.82 against unit owner Marks — and held that the attack on entitlement was foreclosed:
“Marks' argument is barred by the doctrine of res judicata.” (2026-Ohio-3510, ¶ 13)
Entitlement had been affirmed in the first appeal. Only the amount remained.
Restraints on transfer are read narrowly in Ohio. Our Ohio governing statute page covers how the documents are construed.
Two lessons, pointing in opposite directions
For a board: your transfer-control clause is narrower than you think. Ohio associations routinely believe they hold a veto over who may take title. Most of these clauses were drafted decades ago around a sale to a purchaser, and they will be read to mean exactly that. They do not reach:
- a gift to a non-family member, as here
- a transfer-on-death designation
- a transfer into or out of a trust, unless the clause says so
- a devise under a will
- a transfer by operation of law on divorce or death
A board that stops a transfer it has no power to stop is not merely wrong. It is potentially in breach of its own documents, with the owner's fee claim available in reply — which is how a different Ohio association turned a $57,386.72 judgment in its favour into an exposure this year. Our Ohio estoppel and resale page covers the transfer process the association can legitimately require.
For an owner: appeal entitlement in the first appeal or lose it forever. That is the res judicata holding, and it is unforgiving. When a trial court finds an association entitled to fees but defers the amount, an owner is in an awkward position — there is no final appealable order yet, so they cannot appeal the number, and when the number eventually arrives the entitlement question has already been decided.
The practical answer is to litigate entitlement properly at the first opportunity, in whatever appeal does reach the appellate court, rather than treating the fee stage as a later problem.
The number is the story
A dispute about the paperwork on one unit produced $21,537.82 in fees against one owner, across three appeals spanning nineteen months. Nobody was evicted, no covenant was violated, no assessment went unpaid. The entire fight was about whether a board had to approve a transferee.
That is the shape of Ohio association litigation in this period. The large numbers in the 2025-2026 appellate record are almost all fee numbers rather than damages numbers, and the statutes generating them — R.C. 5311.19(A), 5312.11(A)(3) and 5312.13 — are doing more work in Ohio than the covenants themselves.
What to do about your own clause
Read it, and read it against the transfers that actually happen. Deaths, trusts and family transfers outnumber arm's-length sales in most mature Ohio communities. If the clause was drafted for sales only, it governs a minority of the transfers the board will see.
Decide whether you want it broader — carefully. Restraints on alienation attract scrutiny in Ohio, and a clause that purports to let a board veto an inheritance is a different and more vulnerable animal than one that requires notice and an information form. Most boards want the information, not the veto, and an information requirement is far easier to defend.
Separate the transfer fee from the transfer approval. An association may charge a reasonable fee for processing a transfer and producing resale documents. That is a different power from approving the transferee, and confusing the two is how boards end up asserting authority they do not have.
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