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Ohio Foreclosure Defense & Consumer Law > Blog > Real Estate > Ohio Real Estate Law Decision Involving 140-Year-Old Park: Court Rules Parking Fees Do Not Violate Restrictions On Deed

Ohio Real Estate Law Decision Involving 140-Year-Old Park: Court Rules Parking Fees Do Not Violate Restrictions On Deed


A recent decision made by the Ohio Supreme Court carries broad implications for Ohio real estate law, including when it comes to the interpretation of deed restrictions and the “Marketable Title Act,” a provision of Ohio real estate law that allows for heirs’ interests and claims in land donations “prior to the root of the title” to be extinguished under some circumstances in an effort to simplify these types of transactions.

At Kohl & Cook Law Firm LLC, our Columbus real estate lawyers have extensive experience handling a wide range of real estate law matters, including contract disputes. We are committed to getting results for our clients. In this article, you will have a more comprehensive overview of the key details in this case. If you are locked in any type of real estate dispute and you have questions about your rights, please do not hesitate to contact us for a confidential, no obligation consultation.

Understanding the Case: Background and Facts

The case involved the Cleveland Botanical Garden, located in Wade Park, which was created as the result of a land donation in 1882 with a purpose of providing citizens with the ability to “recreate, have, improve and maintain an attractive public park.” The donation came with deed restrictions dictating that the park was to be “open at all times to the public” and only used as a public park, and also contained a reversionary clause dictating that if any part of the grounds were at any time not used for public purposes, it would revert to Wade’s heirs forever.

Finding itself in need of making some “updates” in order to keep operating – specifically, seeking to construct a parking lot, close on Mondays, and charge admission fees  – it was the garden’s responsibility to obtain permission from all of Wade’s heirs in order to move forward with these changes, but it had a difficult time doing so. As a result, the garden sought a declaratory judgment from the Ohio courts, requesting a declaration that their proposed usage complied with the deed.

However, several of Wade’s heirs contested the garden’s changes, arguing that, by not being open to the public at all times, the deed restriction was technically being violated. The heirs also argued that adding in a parking lot and charging the public fees were ruining the original intention for the park.

The Decision: Trial Court, Eighth Circuit, & Ohio Supreme Court Decisions

The trial court found that the garden’s actions were permitted under the deed and that the reversion rights of the heirs had been extinguished under the Marketable Title Act because they failed to file a notice with the county to preserve their interests, as required.

The Eighth Circuit of Appeals upheld the decision on the garden’s actions but reversed the decision on the Marketable Title Act, finding that, because the heirs’ interests were created at the same time as, or simultaneously with, the deed, their rights could not have been extinguished. The Ohio Supreme Court agreed, finding that literal compliance, as put forth by the heirs, would make operating the park impractical and that, when he donated the land in 1882, Wade recognized that it would be subject to various development needs, rules, and regulations. The Court also found that literally interpreting “open at all times to the public” in the deed, as the heirs argued, was essentially nonsensical, concluding that this would involve having to get permission from the heirs even just to, for example, cordon off parts of the park for maintenance – an unviable interpretation. Finally, the Court agreed with the Eighth Circuit that the heirs’ rights to reversion had not been extinguished.

Columbus, Ohio Real Estate Attorneys

Real estate contracts disputes are complicated. You do not have to navigate the complexities of your case alone. We will put in the time and resources to protect your rights and interests. If you have any questions or concerns involving land transactions and/or accompanying deed restrictions, contact our Columbus real estate attorneys at Kohl & Cook Law Firm LLC today to find out how we can help.



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