Whether a fence was in breach of a subdivision’s Declaration of Covenants, Conditions & Restrictions (CCRs); Laches; Knight v Northpointe Bank; Absence of documentary evidence; Homeowners Association (HOA)

In this dispute over whether a fence complied with a subdivision’s deed restrictions (the CCRs), the court held that the trial court erred in granting defendants summary disposition based on laches and on plaintiff’s “failure to provide certain documentary evidence to establish the existence of a genuine issue of material fact.” In the fall of 2017, defendants requested and obtained approval from the subdivision’s HOA board “to build a fence on their property. The parties agree that the HOA board approved the construction of a fence, and defendants built” one in 11/17. But the parties disputed “what exactly the HOA board approved and whether the fence as built complies with that approval and with the” subdivision’s CCRs. On appeal, the court first noted that defendants failed to “raise laches as an affirmative defense or move for summary disposition on that basis[,]” which generally constitutes a waiver of the defense. While they relied on the fact they did assert equitable estoppel as an affirmative defense, the two “are distinct affirmative defenses with distinct elements,” and the court did not “see how, in this case, defendants’ assertion of the former defense would somehow excuse their failure to assert—and thus their waiver of—the latter.” Further, apart from their waiver of the laches defense, the court agreed “with plaintiff that the trial court erred in its merits assessment of that defense.” In granting defendants’ summary disposition motion, “the trial court made only a conclusory ruling that ‘the delay in seeking to enforce the CCRs would prejudice [d]efendants.’ [It] offered no findings or explanation in support of that conclusion. Nor does the record reveal any grounds for granting” them summary disposition on this basis. The only prejudice that they asserted, “both below and on appeal, are the costs that they incurred in building the fence and would incur by having to remove it. At no point” did they show that those costs were “the result of plaintiff’s delay in not bringing his challenge sooner.” As to the lack of documentary evidence, neither the trial court nor defendants meaningfully explained “why plaintiff would have had to produce evidence regarding the fence’s consistency with board approval to effectively oppose the arguments for summary disposition that defendants advanced in their motion.” Reversed and remanded.