Restrictive covenants as to unapproved exterior nonconforming alteration; Motion for reconsideration

In this dispute over the application of restrictive covenants, the court held that the trial court did not err in finding that plaintiff-Association proved defendants-the Merhis’s fence violated the Restrictions at issue. However, it did err when it originally denied the Association summary disposition as to the stone facade. It did not err in later granting the Association’s motion for reconsideration but erred in signing a proposed order that was too broad and did not comport with its “express or implied ruling.” The parties did not dispute the underlying facts as to the fence and stone facade. The Merhis asserted that “the Restrictions did not apply to them or their property because they did not have actual knowledge of the Restrictions.” However, accepting this “argument would turn on its head the essential principles of Michigan’s race-notice property law.” They also contended, for the first time on appeal, that “they did not need to get approval for their exterior improvements under Article II because the Association did not file suit to enjoin them from making the improvements before they contend that they may have completed the improvements.” However, the court noted that it was “undisputed the Merhis failed to submit any plans to the Association or its representative for approval. Therefore, neither exception to the approval requirement stated in Article II applies.” Because they failed to establish a genuine issue of fact regarding “whether they had to obtain the Association’s approval, the trial court did not err when it determined that the Association had shown that the Merhis breached the Restrictions by failing to submit plans for approval before commencing their renovations.” Had they submitted plans before they began “their work, the Association could have disapproved the plan and worked with the Merhis to help develop a plan in conformity and harmony with the existing design character of the structures in the subdivision. The Merhis’s failure to submit plans and unapproved exterior nonconforming alteration caused substantial injury and compelled the Association to enforce the Restrictions after the project had already been started and when any dispute would necessarily involve considerable expense.” Thus, the trial court did not err by refusing to excuse their “breaches of the Restrictions as a mere technical violation.” The court affirmed the trial court’s grant of the Association’s motions for reconsideration and summary disposition. However, it vacated the trial court’s order, and remanded for entry of a new order that comported with the trial court’s oral ruling.