Get documents about "Defendant receiveda warranty deed that contained the foregoing deed
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On August 17, 2004. Defel"ldant Patrick Donnelly purchased the home at 6868
Fredmoore next door to Plaintiffs home. In the course of purchasing his home,
Defendant received a warranty deed that contained the foregoing deed restrictIons.
On October 4, 2004, a builder completed an application for Defendant for a
building permit to build a garage on Defendant's lot. Around the time that construction
began on Defendant's garage. Plaintiff had both a telephone conversation and an in-
person discussion with Defendant in which Plaintiff alerted Defendant to 1he existence
of the above stated deed restrlctions. Despite his knowledge, Defendant proceeded to
construct a detached garage that is approximately 20 feei by 40 feet in size and is
placed only nine feet from the lot line of Plaintiff's property. Defendant's garage has a
hip roof, not a gable roof, like his home, and the garage is more than 50% clad and
vinyi sided.
The Plaintiff began this action on November 5, 2004, days of the start of
construction on Defendant's garage, claiming that Defendant's garage violates Cleea
restrictions, and is seeking an order for removal of"the garage.
Public policy favors the use of residential deed restrictions that are established
by proper instruments that courts have vigorously enforced valid restrictions. See
Webb vs. Smithl 224 Mieh App. 203 at 210 to 11, (1984) .• and O'Connor vs. ReSQrt
Custom Builders, Inc., 459 Michigan 335, (1999)
Although it is a policy of our courts to protect property owners who have relied on
such restrictions, there is an equitabls exception to the general rule when conditions
have changed Such that enforcement of the restriction would be inequitable. See
WebQ. supra, at 2 i3. Stated otherwise, the Court should not enforce a restriction when
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a party seeking enforcement has waived a right to enforce it by failing to challenge
similar deed restriction violations on neighboring properties. O'ConnQr,,! supra at 343 -
3434. The standard for demonstrating this waIver or change of conditions is high.
Variations from deed restrictions that are no more than minor violations are insufficient
to demonstrate waiver. Rove vs. Robinson, 126 Mien Aop, 151 at 155, (1993),
Although frequent violations can be indicative of abandonment of a restriction. a
number of violations alone does not estabtish a waiver. "The character as well as the
number of claimed vtctations must be considered in determining whether the
compiatning property owner'S have waived or forfeited the benefit of restrictions," Care)!
v Rowha~ 301 Michigan 168 at 174. (1942).
Waiver applies only when unchallenged violations show "an abandonment of the
deed restrictions and the charge in the character of the neighborhood than that
intended by those restrictions." Rove, supra at 156
Even after multiple breaches of the deed restrictions. this Court should grant the
party seeking enforcement if the restriction can be shown to be of value to the
complainant and the breaches have 1"101 resulted in a subversion of the original scheme
of development rising to the level of a substantial, not entire, change in the i$SU9. See
Care¥. supra. 174.
Further. given the factual differences that arise. there are no universal rules. and
each case must be determined on its own facts, See Care~. supra at 172.
Neither party in this case has cited any authority that is directly analogous to the
facts and circumstances of this case, Plaintiff relies 01'\ an unpublished decision of the
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iJrs
- Court of Appeals. Lauren Hills Homeowners' Improvement Association vs, 9oco,
Docket Number: 253523. Decided April 26. 2005.
The facts of Lauren Hills are similar in that it involved a deed restriction
prohibiting detached buildings and the Defendam was seeking to build a detached
garage. Although there were numerous outbuildings in the Lauren Hills Subdivision, the
buildings or sheds are pfay houses. there were no detached garages. The court in
Lauren Hilts concluded that the outbuildings were. "different in cheracter.' than the
garage the Oefendant intended to build and did not result in a substantial change in the
neighborhood.
The Supreme Court's decision in Care'l supra. is also instructive. In Carey. the
Court addressed whether the Defendant's rooming house violated a deed restriction
prohibiting multiple family houses. The Court concluded there was a violation but went
on to analyze whether similar violations In the neighborhood where homeowners were
renting rooms constituted a sufficient change in the circumstances to suggest finite
enforcement of the restriction.
The Court found that the claimed 23 violation of the neighborhood did not justify
equitable relief from the deed restriction because the violation were not conspicuous
and did not result in a change in a single family so-called high class residential
character of the neighborhood. to at 174 to 175.
The Defendants, a developer and homeowners, attempted to sell interval
ownership interest or timeshares In a home where deed restrictions limited the use of
the homes in the subdivision to, "residents' purposes: After concluding that interval
ownership did not constitute a residential purpose and was thus barred by the deed
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