Scholtus v. Parkside Knolls-South Homeowners Assoc

IN THE COURT OF APPEALS OF IOWA

No. 22-0600
Filed April 26, 2023

RICHARD SCHOLTUS, LINDA SCHOLTUS, and FOWLER LAND, LLC,
Plaintiffs-Appellants,

vs.

PARKSIDE KNOLLS-SOUTH HOMEOWNERS ASSOCIATION and PARKSIDE
KNOLLS HOMEOWNERS ASSOCIATION,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Appanoose County,

Daniel P. Wilson, Judge.

Landowners appeal a declaratory judgment confirming the validity of certain

restrictive covenants to real property. REVERSED AND REMANDED.

Edward E. Cox of Craver, Grothe & Cox, LLP, Centerville, and James

Anthony Sinclair of Sinclair & Associates, P.C., West Des Moines, for appellants.

John R. Webber III of Harrison, Moreland, Webber, & Simplot, P.C.,

Ottumwa, for appellees.

Heard by Greer, P.J., and Chicchelly and Buller, JJ.
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CHICCHELLY, Judge.

This appeal concerns the authority of a homeowners association to enact

new restrictive covenants on real property. The district court found the restrictive

covenants at issue were duly adopted by the Parkside Knolls-South Homeowners

Association (the HOA). However, the HOA’s governing documents did not express

authority to create restrictive covenants. Unless otherwise agreed to, all

landowners must manifest assent to enter into a covenant restricting the use of

their land. Because Richard and Linda Scholtus (the Scholtuses) did not assent

to the covenants at issue, we find them invalid. We reverse the contrary ruling of

the district court and remand for entry of an order consistent with this opinion.

I. Background Facts and Proceedings.

In June 1972, Rathbun Investment Corporation (Rathbun) executed a

consent to certain protective and restrictive covenants as the sole owner of a

subdivision known as Parkside Knolls-South. The consent was recorded with the

Appanoose County Recorder. Paragraph (P) of the consent required Rathbun to

establish a homeowners association “for the purpose of maintaining parks and

grounds that will be conveyed to the Association when the plan . . . for the

development of the real estate above described has been completed.” It also

required all owners of lots in the subdivision to be members of said homeowners

association. The Parkside Knolls-South Homeowners Association was duly

established as a nonprofit corporation. Amendments to the covenants were

recorded on November 30, 1972, and March 28, 1978.

Because no subsequent claims were recorded within twenty-one years, the

parties agree the restrictive covenants expired in 1999 pursuant to Iowa Code
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section 614.24 (2021). Nevertheless, the HOA remained in existence and

continued to operate with respect to matters other than the restrictive covenants.

In 2001, the Scholtuses purchased multiple lots within the subdivision, including

Outlot 3. Since, as the parties agree, the 1972 restrictive covenants expired in

1999, the lots were not subject to restrictive covenants at the time of this purchase.

The HOA held an annual meeting in 2002. The HOA’s minutes for that

meeting include an update that “the Board will be working on the revision of the

Covenants, and that there won’t be a need for many changes.” In March 2003, the

HOA sent notice of the next annual meeting and indicated that items of business

would include “updating” the restrictive covenants. The minutes of the HOA’s

annual meeting, held on April 12, 2003, reflect:

Seven members were present, five of whom were eligible to vote.
There were four proxies from members who also were eligible voters,
making a total of 9 voters. Only 5 were needed for a quorum, so the
meeting proceeded.
...
The President went through the revised Covenants with the
members, and discussion was held on several points. Following the
discussion Ron Laird moved to adopt the Covenants. It was
seconded by Mike Sheehan, and carried.

At this meeting, Mike Sheehan was elected as president and Ron Laird as

secretary of the HOA. There is no other indication of voting or assent by the

members.1 The previous secretary was the only signatory to the minutes. On May

7, 2003, the “amended” consent to protective and restrictive covenants was filed

1 The record is unclear as to how the quorum was reached. Previous indications
were that fifty-three lots existed within the subdivision. According to the bylaws,
members are titleholders of a lot or lots, or townhouse within the subdivision. Each
member is entitled to one vote, unless the membership or other fees assessed by
the HOA are unpaid.
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with the Appanoose County Recorder. It states that Parkside Knolls Homeowners

Association “is a not for profit corporation and is the owner in fee simple of the real

estate.” The consent purports to have been “[a]mended this date by resolution

duly adopted by Parkside Knolls Homeowners Association” and is signed by the

HOA’s president and secretary. Among other restrictions, it states, “Outlots 3, 4

and 5 may be used for recreational purposes, such as parks, playgrounds, private

lakes, and golf courses or other private recreational activities.”

In 2020, Fowler Land, LLC (Fowler) entered into an agreement to purchase

Outlot 3 from the Scholtuses. The agreement is reportedly contingent upon the

ability to use the land for a purpose not in conformance with the 2003 covenants.

In February 2021, the Scholtuses and Fowler filed a petition for declaratory

judgment, seeking a determination that the restrictive covenants adopted in 2003

are without legal force and effect. The district court found the 2003 covenants are

valid because they were adopted following the appropriate procedure in the HOA’s

bylaws, including requisite notice, a quorum of members, and approval by a

majority of the members. The Scholtuses and Fowler filed a timely appeal.

II. Review.

As this case was tried in equity, we apply a de novo standard of review. In

re Coe College, 935 N.W.2d 581, 586 (Iowa 2019). “Nevertheless, we give weight

to the factual findings of the district court, especially with respect to determinations

of witness credibility.” Carroll Airport Comm’n v. Danner, 927 N.W.2d 635, 642–

43 (Iowa 2019).
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III. Discussion.

The appellants argue the restrictive covenants between the HOA and the

Scholtuses are invalid because they lack a key element of contract construction:

mutual assent. There is no question that “[r]estrictive covenants are contracts.”

Fjords N., Inc. v. Hahn, 710 N.W.2d 731, 735 (Iowa 2006). “[T]he formation of a

contract requires a bargain in which there is a manifestation of mutual assent to

the exchange and a consideration.” Restatement (Second) of Contracts § 17 (Am.

Law Inst. 1981). “Manifestation of mutual assent to an exchange requires that

each party either make a promise or begin or render a performance.” Id. § 18.

Here, the Scholtuses did not make a promise or otherwise agree to restrictive

covenants encumbering their land. Our supreme court has described how lot

owners may come to promise land use restrictions to one another:

Covenants are agreements or promises. The agreements or
promises here are to use real estate for certain purposes only. Such
promises may be made in a variety of ways, as (a) by a single
restricting instrument in which lot owners join, or (b) by a landowner’s
series of deeds containing restrictions on lots in a tract, or, as here,
(c) by a landowner’s restricting instrument on lots in a tract followed
by deeds to those lots. The result is the same in all these forms of
restriction: the lot owners promise each other to use their lots in
conformity with the restrictions. The times at which the promises
arise, however, vary with the form in which the promises are made.

Compiano v. Kuntz, 226 N.W.2d 245, 248 (Iowa 1975).

Here, there is no evidence the Scholtuses made such a promise. The

original covenants expired by the time they purchased the property. The

“amended” consent filed in 2003 could possibly be construed as a “single

restricting instrument in which lot owners join[ed].” See id. However, this consent

certainly did not include all lot owners, there is no indication the Scholtuses joined
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in that execution, and the document purports to be adopted by the HOA. The

record is not clear whether the HOA may own one or more lots in the subdivision,

but it certainly does not own all of the lots.2 “Under our rule of construction, any

doubts about the applicability of the use restrictions must be resolved in favor of

the free use of the properties.” Amana Soc’y v. Colony Inn, Inc., 315 N.W.2d 101,

116 (Iowa 1982). In such cases when it does not own all of the land, we hold that

a homeowners association does not have outright authority to impose new

restrictive covenants on its members. See id. at 115–16 (finding the original use

restrictions signed by all members of the Amana Society expired pursuant to

statute and the Amana Society could not prove the existence of a new contractual

relationship); see also Compiano, 226 N.W.2d at 248 (requiring the lot owners to

make a promise to each other). That is not to say it could never happen. There is

simply no record of the members, or the Scholtuses specifically, agreeing to this

arrangement.3

Moreover, we cannot find in the record that the Scholtuses are paying

members of the HOA, and we are not aware of any legal vehicle that would compel

them to join without restrictive covenants in place at the time of their purchase of

the lots. The HOA’s counterargument is that (1) the Scholtuses waited eighteen

years after receiving notice of the new covenants to take action and (2) a board

member testified that the Scholtuses requested the HOA enforce the covenants

2 Curiously, the 2003 consent states that the HOA is the owner in fee simple of the
real estate described, which replicates the language of the original consent when
Rathbun did in fact own the land outright.
3 Neither the HOA’s articles of incorporation nor the Scholtuses’ property deed are

found in the record. Accordingly, we cannot opine as to the scope and nature of
their relationship.
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against a neighbor in approximately 2019 when they complained about tall grass.

However, we find the mere knowledge that restrictive covenants existed does not

constitute manifestation of assent to be bound by those covenants, especially

considering the covenants were passed off as amendments to covenants that

members might not have known expired. See Jones v. Beiber, 103 N.W.2d 364,

365 (Iowa 1960) (“While the law favors the free legal use of land by its owner and

frowns upon restrictive covenants[,] they are recognized and enforce[a]ble in a

court of equity where the intention of the parties is clear and the restrictions

reasonable.” (emphasis added)). If the HOA’s timing argument amounts to a

request to apply the doctrine of laches, we find it has failed to prove undue

prejudice resulting from the delay. See Henderson v. Millis, 373 N.W.2d 497, 505

(Iowa 1985) (“Laches consists of unreasonable delay in asserting rights which

causes another undue prejudice, proven by clear and convincing evidence. Mere

passage of time is not enough . . . .”). Similarly, there is insufficient detail

surrounding the complaint to conclude that the Scholtuses meant to make

themselves party to the restrictive covenants. The Scholtuses also reportedly

erected structures on their property since 2003 that have not been in conformance

with the alleged covenants but have not received an accusation of violation.

The HOA also relies on the district court’s finding that the covenants were

adopted in accordance with its bylaws. Although we agree the action was

ostensibly carried out in compliance with the notice, quorum, and voting

requirements for member action set forth by Iowa Code chapter 504 and the HOA’s

bylaws, there is no authority provided for the adoption of restrictive covenants. The

HOA’s bylaws indicate, “Meetings to amend covenants will be as provided in the
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Covenants.” The covenants were expired by the time the bylaws were adopted in

2002, and there is no record of prior-existing bylaws. Even if the HOA did not

realize the covenants were expired, amendment was not properly carried out

because the consent creating the original covenants states that amendment

requires a majority vote of the legal titleholders with one vote per lot. This

procedure is different from the voting structure outlined for member action in the

bylaws, which permits one vote per member, while members may own one or more

lots or a townhouse in the subdivision. It is also not clear if a lot may have more

than one member in the HOA if there are multiple owners listed on the title.

Because the Scholtuses did not manifest assent to the 2003 covenants, we

find they did not form a contract, and the covenants have no legal force and effect

against the Scholtuses. With this result, we do not reach the appellants’ additional

arguments for invalidating the covenants based on fraud and an unconstitutional

taking. We reverse the contrary ruling of the district court and remand for entry of

an order consistent with this opinion.

REVERSED AND REMANDED.