Real Property

Issues: Enforcement of deed restrictions; Deed restriction as a contract; Bloomfield Estates Improvement Ass'n, Inc. v. City of Birmingham; Plain language of deed restrictions; Johnson Family Ltd. P'ship v. White Pine Wireless, LLC; Amendment to deed restrictions taking effect only "upon commencement of the next 10-year automatic extension period"; Brown v. Martin; Promissory estoppel; Zaremba Equip., Inc. v. Harco Nat'l Ins. Co.; Notice; McMillan v. Iserman; Claim that the Amended Restrictions should apply to only the signatories of the Amended Restrictions; Claim of "detrimental reliance" on the Original Restrictions; Use of dictionary definitions to determine the common meaning of an undefined word; Anzaldua v. Neogen Corp.; "A" defined; Parol evidence where the restriction was clear and unambiguous; In re Skotzke Estate; Effect of failing to challenge a deed restriction violation

Court: Michigan Court of Appeals (Unpublished)

Case Name: Boulter v. Dresselhouse

e-Journal Number: 58228

Judge(s): Per Curiam – Murray, Donofrio, and Borrello

 

Noting that it construed a substantively identical deed restriction provision in Brown, the court held that the Termination of Declaration of Restrictions could not preclude further amendment to the Original Restrictions at the time the Amended Declaration of Restrictions were executed. The Amended Restrictions governed this dispute about a second garage on the defendants' property. Further, their promissory estoppel argument failed, and the court rejected their claims of detrimental reliance on the Original Restrictions and that the Amended Restrictions should only apply to the signatories of the Amended Restrictions. Thus, the court affirmed the trial court's amended judgment enforcing deed restrictions and its prior order denying their motion for summary disposition. The amendment mechanism in the Original Restrictions provided that the covenants were to run with the land and be binding for 25 years from the date of recording, after which they were to be automatically extended for successive periods of 10 years, "unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part." Defendants' Termination was recorded on 11/7/11, and purportedly terminated all restrictions in the subdivision. Plaintiffs then drafted the Amended Restrictions, which changed the Original Restrictions by permitting a second detached garage, measuring up to 750 square feet, in addition to an attached garage. The Amended Restrictions were recorded on 11/22/11. "After the Amended Restrictions were recorded, defendants still planned to build the 1200 to 1408 square-foot detached garage." Plaintiffs filed this action to enjoin construction and declare the Amended Restrictions valid and enforceable. The court concluded that pursuant to "the plain language of the deed restriction, any amendment could not take effect until November 23, 2011, the commencement of the next 10-year term." In Brown, the court held that "an amendment to deed restrictions takes effect only 'upon commencement of the next 10-year automatic extension period.'" Thus, while "the Termination was executed and recorded before the Amended Restrictions, the Termination was not the governing instrument at the time the Amended Restrictions were executed and recorded. The Original Restrictions were." The court also noted that it held in McMillan "that any valid amendment to a covenant applies to all properties subject to the covenant." The trial court "correctly ruled that the Amended Restrictions were valid and enforceable, and the Termination was unenforceable."

 

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