By: Austin M. Tinsley
Effect on Existing Planned Communities in Kentucky
This is the second article in a series on Kentucky’s Planned Communities statute (KRS §§ 381.785 – 381.801) (the “Act”), which provides guidance to developers in the greater Cincinnati area. If you missed the first article, you can read it here, the third article is here.
With a few exceptions, the Act states that all planned communities in Kentucky are subject to the Act. More particularly, the Act does not necessarily invalidate a planned community that was created prior to June 29, 2023. Thus, unless the Act explicitly states otherwise, governing documents of a planned community created prior to June 29, 2023 remain valid under Kentucky law.
One exception of the Act’s application to all planned communities in Kentucky is that the Act does not apply to any developments created prior to June 29, 2023 if such developments do not include a homeowners association as defined in KRS 381.785. Therefore, a planned community must have a homeowners association governing it in order for the development to be classified as a “planned community”, whether or not the development was created before or after June 29, 2023.
A second exception relates to the amendment and termination process. The Act provides that owners may amend or terminate the declaration with the consent of 80% of all lot owners in the planned community. These requirements for amending or terminating the declaration only apply to declarations created after June 29, 2023. If a declaration created prior to June, 29, 2023 is silent on the amendment or termination process, then the declaration may not be amended. The Act does not “fill in the gap” for planned communities created prior to June 29, 2023. However, most declarations or other governing documents do include provisions permitting amendments. The next article in this series will compare the Act with Ohio law.
Regardless of whether you seek to establish a planned community or understand the Act’s impact on an existing planned community, it is important to consult with an attorney to navigate the process. For questions about the Act or other related issues, contact Austin M. Tinsley at 513-768-9709 or amtinsley@strausstroy.com. Austin regularly handles both commercial real estate and residential real estate matters, and is licensed in Ohio, Kentucky, and Indiana.