office memo tatyana samoylovich[1][1]
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OFFICE MEMORANDUM
TO: Terri Raffaele
FROM: Tatyana Samoylovich
DATE: April 1, 2010 Deed restriction enforcement, Nuisance
RE: Lori and Michael Brandt
QUESTION PRESENTED
I. Can a landowner enforce a deed restriction against her neighbors and recover
damages for breach of that restriction under Mich. Comp. Laws Ann. § 600.5807, which
requires a showing that when the claim first accrued, the claimants commenced the action
within the statute of limitation of ten years for the actions founded upon covenants in
deeds, where the neighbors have been and remain in violation of the deed restriction for
the past eight years; where the deed restrictions prohibits against keeping farm animals,
storing garbage on the property, and displaying signs not in conformity; will each
violation be viewed separately where a landowner can presume that the inaction of the
neighbors in light of these violations signal a waiver of the deed restrictions?
II. Can a landowner, in an action against her neighbors, successfully prove four
elements under the private nuisance theory in Prosser and Keeton on Torts, which
requires the defendant to act with intent of interfering with the use and enjoyment of the
land by those entitled to that use; proof of interference with the use and enjoyment of the
land; showing of the interference that resulted and the physical harm, interference must
be substantial; and that the interference was of such a nature, duration or amount as to
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constitute unreasonable interference with the use and enjoyment of the land, where the
neighbors have allowed their live stock to roam on the land-owners property, where the
neighbors speed past the land-owners property for hours on off road vehicles, yell
obscenities, and shine a high powered light into the land-owners windows, where the
neighbors shoot guns and fire crackers at varying times, and where the neighbors pile
their garbage near the land-owners fence?
BRIEF ANSWERS
I. Probably. Under Mich. Comp. Laws Ann. § 600.5807, which requires a
showing that when the claim first accrued, the claimants commenced the action within
the statute of limitation of ten years. Some courts have also looked at waiver of deed
restrictions, and found them applicable on case-by-case basis. The plaintiffs must prove
that the claim first accrued not more then ten years ago. The plaintiff must then provide
evidence that support her actions in dealing with the defendants as not a waiver of a right
to enforce the deed restriction.
II. Probably. Under the private nuisance theory in Prosser and Keeton on Torts,
the following elements must be established: the defendant acted with intent of interfering
with the use and enjoyment of the land by those entitled to that use; proof of interference
with the use and enjoyment of the land; showing of the interference that resulted and the
physical harm, interference must be substantial; and that the interference was of such a
nature, duration or amount as to constitute unreasonable interference with the use and
enjoyment of the land. If the landowner can establish all these elements against her
neighbors and the complaint is filed, under M.C.L.A. § 600.3815(3), before thirty days of
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the last act, then the landowner will meet all requirements needed to win the nuisance
claim.
STATEMENT OF FACTS
Lori and Michael Brandt are landowners of parcel twenty in Bellaire Estates,
which is part of a larger subdivision. The subdivision is a rural area; the properties have
always been marketed as residential and recreational lots. The subdivision lots share a
common set of deed restrictions that bind all parties tied to the land as well as tenants and
lessees. These restrictions prohibit against keeping farm animals or breeding animals for
any commercial purpose, storing garbage on the property line, it regulates measurements
of fences, and the use of signs. The deed further includes standard warranties, as well.
Brandt’s neighbors, Chris and Christine Standfest, own parcel seventeen and eighteen
and claim to own parcel nineteen, which is directly adjacent the Brandt’s lot twenty.
Candice Standfest, the daughter, lives on lot nineteen with her boyfriend Calyton Taylor,
and their kids. The Brandt’s are having difficulties with the Standfests and Clayton
Taylor. These difficulties started approximately at the beginning of year 2002. The
Brandt’s allege that the Standfests keep a number of farm animals, including horses,
cows, and sheep. They sometimes move manure close to the property line, removing it
from the property only when forced to do so by the health department. They shine a
high-powered light into the windows, follow closely on the road, and drive off-road
vehicles up and down the gravel road in front of the Brandt’s house for hours, several
days a week, and occasionally yell obscenities. They pile garbage near the Brandt’s fence
that is visible and produces an unpleasant odor. They soot fireworks and firearms near
the property line at varying times, including late into the night. The Brands have not
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attempted to enforce the deed restriction because they fear that they will be confronted
with a greater amount of nuisance from the Standfests. Nevertheless, the Standfests have
been given several warnings, including from the authorities and other local agencies, but
the problems persist. The Brants would like us find out if they can bring a ‘Nuisance’
action and a claim in ‘Equity’ for violating the deed restrictions against the Standfests.
APPLICABLE STATUTES
Mich. Comp. Laws Ann. § 600.5807(4) (West 2006).
No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
. . .
(4) The period of limitations is 10 years for actions founded upon covenants in deeds and mortgages of real estate.
Mich. Comp. Laws Ann. § 125.3407(a)-(b) (West 2006).
Except as otherwise provided by law, a use of land or a dwelling … used, erected, altered, razed, or converted in violation of a zoning ordinance or regulation adopted under this act is a nuisance per se. The court shall order the nuisance abated, and the owner … is liable for maintaining a nuisance per se. The legislative body shall in the zoning ordinance enacted under this act designate the proper official or officials who shall administer and enforce the zoning ordinance and do 1 of the following for each violation of the zoning ordinance:
(a) Impose a penalty for the violation.
(b) Designate the violation as a municipal civil infraction and impose a civil fine for the violation.
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Mich. Comp. Laws Ann. § 600.3815(1)-(3) (West 2006).
(1)In any action brought under this chapter, evidence of the general reputation of the building, vehicle, boat, aircraft or place is admissible for the purpose of proving the existence of the nuisance.
(2) Proof of knowledge of the existence of the nuisance on the part of the defendants or any of them, is not required.
(3) It is not necessary for the court to find the property involved was being used as and for a nuisance at the time of the hearing, or for the plaintiff to prove that the nuisance was continuing at the time of the filing of the complaint, if the complaint is filed within 30 days after any act, any violation, or the existence of a condition herein defined as a nuisance, but on finding that the material allegations of the complaint are true, the court shall render judgment and order of abatement as hereinafter provided.
Mich. Comp. Laws Ann. § 67.9 (West 2006).
The council may, either by ordinance or resolution, require the owners and occupants of a lot or premises to remove all snow and ice from the sidewalks in front of or adjacent to the lot and premises, and to keep the sidewalks free from obstructions, encroachments, incumbrances, filth, and other nuisances.
DISCUSSION
I. Can a landowner enforce a deed restriction against her neighbors and recover damages for breach of that restriction under Mich. Comp. Laws Ann. § 600.5807, which requires a showing that when the claim first accrued, the claimants commenced the action within the statute of limitation of ten years for the actions founded upon covenants in deeds, where the neighbors have been and remain in violation of the deed restriction for the past eight years; where the deed restrictions prohibits against keeping farm animals, storing garbage on the property, and displaying signs not in conformity; will each violation be viewed separately where a landowner can presume that the inaction of the neighbors in light of these violations signal a waiver of the deed restrictions?
The Brandts will likely be able to sue the Standfests for breach of the deed
restrictions. The relevant statute, Mich. Comp. Laws Ann. § 600.5807 bars actions for
breach of contract or covenant in deeds, unless they are filed within ten years of the first
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claim. The Brandts allowed the breach of deed restrictions to continue for approximately
eight years. The courts have recognized in similar cases that a waiver may preclude an
action for breach of deed restrictions. However, there are no guiding statutes or law as to
waiver. Therefore, the court will likely conclude that the Brandts are within the ten year
limitation period, and may bring the suit, or the court will look to out of state court
decisions as to waiver and bar the suit for breach of restrictive covenant.
A landowner has the rights to enjoy his property in any way he likes.
Nevertheless, deed restrictions operate to restrict land use Restrictions are conveyed
within a deed and bind the purchaser at the time of purchase. “A deed restriction is also
known as a reciprocal negative easement. It originates for mutual benefit and exists with
vigor sufficient to work its ends.” Ardmore Park Subd Ass. v. Simon. 117 Mich. App. 57,
at 60, 323 N.W.2d 591, at 592 (1982).
Court of appeals, in Ardmore Park Subd Ass. v. Simon., define covenants that run
with the land as deed restrictions and note that reciprocal negative easements have
received much oversight as the cases dealt with more urban communities. This case
presents a situation that the Michigan courts have not dealt with a lot. In this case “The
original deed restrictions were dully amended in 1975 by a majority of those persons then
owning the property in Ardmore Park. The amended restrictions included a prohibition
against fencing over four feet in height.” Id. at 117 Mich. App. 57, at 59, 323 N.W.2d
591 (1982). The issue in this case arose when Simon put up a fence in 1978 in violation
of the deed restriction and argued that previous owner did not amend her deed. The court
of appeals decided to look at out of state decision in this situation, stating that, “While no
Michigan case like the one before us has been decided, several courts from other states
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have interpreted similar language.” id. at 117 Mich. App. 57, at 61, 323 N.W.2d 591, at
593 (1982). Therefore, Michigan courts are likely to take note of cases that do not have
binding authority in order to properly address enforcing deed restrictions.
Public policy favors use restrictions in residential deeds. Rofe v. Robinson. 126
Mich. App. 151, at 157, 336 N.W.2d 778 (1983). In the Wood v. Blancke case, the courts
point to Michigan’s established public policy. “We recognize the fact that it is the
established public policy of this state to permit and uphold certain restrictions upon the
use and occupancy of real property”. Wood v. Blancke, 304 Mich. 283, at 287-288, 8
N.W.2d 67 (1943).
The following case examines what happens when courts find a defendant in
violation of a covenant that runs with the land. In Webb v Smith. 224 Mich. App. 203,
568 N.W.2d 378 (1997). In this case a property owners sought injunctive relief requiring
removal of a home from the neighboring lot since it was built in violation of the
reciprocal negative easement. The defendants were on notice of the building restrictions
before they completed their home. “Restrictions operate as reciprocal negative easements
when a landowner has constructive notice of them”. Id. 224 Mich. App. 203, at 207, 568
N.W.2d 378, at 380 (1997). The Court of Appeals held that: (1) defendants could not
contend that they built home in good faith and as result of honest mistake; … (5) general
growth of area was insufficient change to bring defendants' actions within equitable
exception to general enforcement rule for changed conditions. Id. 224 Mich. App. 203, at
210, 568 N.W.2d 378, at 381 (1997).
When enforcing a negative easement, "it is wholly immaterial to what extent any
other lot owner may be injured by the forbidden use." Id. at 224 Mich. App. 203, at 211,
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568 N.W.2d 378 (1997). The court held that due to the violation of the deed restriction
the defendant is required to remove the house from the property in violation of the land
use. A defendant, nonetheless, may assert certain defenses in this situation. Supreme
Court set forth three equitable exceptions to the general enforcement rule: (1) technical
violations and absence of substantial injury, (2) changed conditions, and (3) limitations
and laches. Id.
To enforce a deed restriction the landowner must seek permanent injunction
against the breaching party and must prove that the actions violated the restrictive
covenants as a matter of law, or within statutory meaning. In Douglas v. Wages, 271 Ga.
616, 523 S.E.2d 330 (1999), appellants filed suit against their neighbors, seeking
monetary damages for nuisance, breach of the subdivision's restrictive covenants, and
intentional infliction of emotional distress. In their complaint, appellants alleged that
appellees operated motorized all-terrain vehicles, played loud music, and fired loaded
weapons on property located within the subdivision. Id. 271 Ga. 616, 523 S.E.2d 330, at
331 (1999). Appellants' sole contention is that appellees' actions violated the
subdivision's restrictive covenants as a matter of law.
The covenants at issue states that "[n]o noxious or offensive activity shall be
erected, maintained or conducted upon any lot or any party thereof, nor shall anything be
done thereon which may be or may become an annoyance or nuisance in the
neighborhood." Id. 271 Ga. 616, at 617, 523 S.E.2d 330, at 331 (1999). Citing Seckinger
v. City of Atlanta, the courts point out that noxious or offensive activity is too vague to
enforce in court of equity by injunction, unless the meaning is in the definition of
nuisance. Id. The case here turned on whether this court would look to statutory language
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to define if the activities complained of were within the nuisance definition. This court
decided not to look to the statutory language due to technical outcome of the case where
the evidence did not demand for such findings.
Waiver of the deed restrictions can prevent landowners from enforcing a deed
restriction if a court finds that the prior violations have occurred in a significant number
and directly affect the landowners. In Harrigan v. Mulcare. 313 Mich 594, 22 NW2d 103
(1946), the court held that homeowners in a subdivision were denied injunctive relief
against other owners who were violating a residential deed restriction, where the
homeowners had not taken action and allowed continuous violations. In fact, 9 of the 33
homes and 15 of the 37 lots in the subdivision were violating the deed restriction for 20
years. Here the court held that since violations of the deed restrictions were allowed to
continue for so long it resulted in waiver of the deed restrictions.
There are numerous ways in which the covenant limitations may be avoided. 25
A.L.R. 5th §123 (1994), list three ways where deed restrictions can be argued
unenforceable against the breaching party. “These include waiver of the covenant through
a delay in enforcing a covenant, thus constituting Laches. Another way is to show
abandonment of the agreements. A third way is a showing that the parties are presently
trying to enforce the covenant and previously acquiesced in a violation of the same or a
different covenant on another restricted lot.” But some waivers do not necessarily
translate into laches. In Wilcox v Timberon Protective Ass'n, 111 N.M. 478, 806 P.2d
1068 (1991), the court held that the delay by certain homeowners for over a year in
bringing the suit was not unreasonable and did not amount to laches. The defendants in
this action asserted defenses of good faith immunity, mistake of law, laches and estoppel.
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Trial court agreed but the court of appeals reversed. In this situation the court reasoned
that the plaintiffs took other action such as complaining to a committee, committee was
taking no action, and upon additional violations the plaintiffs filed suit.
II. Can a landowner, in an action against her neighbors, successfully prove four elements under the private nuisance theory in Prosser and Keeton on Torts, which requires the defendant to act with intent of interfering with the use and enjoyment of the land by those entitled to that use; proof of interference with the use and enjoyment of the land; showing of the interference that resulted and the physical harm, interference must be substantial; and that the interference was of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land, where the neighbors have allowed their live stock to roam on the land-owners property, where the neighbors speed past the land-owners property for hours on off road vehicles, yell obscenities, and shin a high powered light into the land-owners windows, where the neighbors shoot guns and fire crackers at varying times, and where the neighbors pile their garbage near the land-owners fence?It is a legal issues of whether the actions complained of constituted a statutorily-defined nuisance, and whether those same actions violated the restrictive covenants as a matter of law
Private nuisance is a tort that protects the interest of those who own or occupy
land from conduct committed with the intention of interfering with use and enjoyment of
the land. Thus, much interference with personal comfort, such as a dog next door which
howls … [is] treated as nuisances because they interfere with that right to the undisturbed
enjoyment of the premises that is inseparable from ownership of the property. Keeton and
Prosser on Torts, 15 § 87 at 619(Westlaw 1984). Keeton and Prosser outline the steps of
requirements for recovery on a private nuisance theory. [T]he tort is committed only, if
and in the absence of an intrusion on land amounting to an intentional entry and a
trespass, the following requirements are satisfied: 1. The defendant acted with the intent
of interfering with the use and enjoyment of the land by those entitled to that use; 2.
There was some interference with the use and enjoyment of the land. 3. The interference
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that resulted and the physical harm, if any, from that interference proved to be
substantial. 4. The interference that came about under such circumstances was of such a
nature, duration or amount as to constitute unreasonable interference with the use and
enjoyment of the land.
There is no need to show damage because interference was of the enjoyment of
the land. furthermore, the conduct it self does not need to be unreasonable, the focus is on
the interference, thus, interference must be. Prosser and Keeton on Torts, 15 § 87 at,
622–3 (Westlaw 1984).
Some of these unreasonable interferences hold the defendant strictly liable. “[T]he
common law in most jurisdictions imposes a strict liability as to trespass claims against
the keeper of animals of a kind likely to roam and do damage is strictly liable for their
trespasses. This has been true in the case of cattle, horses, sheep, hogs, and wondering
fowls”. Keeton and Prosser on Torts, 13 § 76 at 539 (Westlaw 1984).
Furthermore, one may prove unreasonable interferences in a number of ways.
“Unreasonableness is typically proven by testimony of the plaintiffs, neighbors and
experts who can show convincingly the burdens caused by the defendants conduct. It is
undoubtedly helpful as well if the plaintiff can show that the defendant’s use violates a
zoning ordinance or is otherwise illegal.” Keeton and Prosser on Torts, 15 § 88 at 629
(Westlaw 1984).
Circuit courts have authority to abate nuisances under Michigan's general
nuisance-abatement statute M.C.L.A. 600.2940; however, before proceeding to abate
nuisance under the statute, a court must first determine that nuisance actually exists. In
Ypsilanti Charter Tp. v. Kircher, 281 Mich. App. 251, at 270 761 N.W.2d 761, at 774
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(2008), the court defines the essential element of nuisance as “a wrongful, continuing,
impending danger to the lives or health of the public, or to the legitimate property or
personal rights of private persons peculiarly subject to the danger.” A condition that is so
threatening as to constitute an impending danger to the public welfare is a nuisance.
Ypsilanti Charter Tp. v. Kircher. 281 Mich. App. 251, at 276, 761 N.W.2d 761, at 777
(2008). Here the defendants were at fault by allowing sewage to empty into a storm drain
and then in to the Huron River, which the court held to be a public nuisance because its
actions were hazardous to the health and safety of the public. “The raw sewage
contamination and the fire code violations constituted bona fide public nuisances because
they endangered the general health, safety, and welfare of the tenants of Eastern
Highlands”. Ypsilanti Charter Tp. v. Kircher. 281 Mich. App. 251, at 276, 761 N.W.2d
761, at 778 (2008). These conditions posed clear and immediate risks to the general
health, safety, and welfare. The defendant’s actions were to be abated with costs of
$1,702,480.70. The circuit court did not err by declaring Eastern Highlands a public
nuisance on these grounds. The court determined that the actions were considered a
nuisance as applied to the essential element, when it determined that, the court was then
able to abate the action under the statutory provision M.C.L.A. 600.2940.
The abatement statute is followed to terminate the harmful nuisance, but another
statue tells how long a claimant has to bring the claim to court. Statute of limitations
under Michigan law precluded recovery of damages in nuisance and negligence claims
for any injuries which were sustained more than three years prior to date on which
complaints were filed; M.C.L.A. 600.5805 which allows for recovery up to 3 years after
the time of the injury to property.
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The Standfests could use sever defenses to an action in torts for nuisance, and
deed restrictions. Defendant may argue that Michigan's nuisance statute,
Mich.Comp.Laws Ann. § 600.2940, does not include any express provision. Therefore,
the courts can not properly decide this issue. Defendants can also argue that they should
escape liability in private nuisance because their actions do not amount to substantial
interference. But this element will be up to our client to prove. Defendants can also assert
that even they had knowledge of the restrictions, there was no willful violation of the
covenants, and they acted in a mistaken hope and expectation that the plaintiff had
waived the right to enforce the deed restrictions. It is unlikely that the lack of willfulness
is going to be allowed in as an argument because it is not an element for violating a deed
restriction, but it could be a reasonable argument in a nuisance defense.
Our Client should be able to sell her property without the fear of diminution in
property value because Michigan courts have ruled that they shall have the power to
abate any nuisance under M.C.L.A. 600.2940 statutory provision, so long that we can
establish essential element of nuisance as “a wrongful, continuing, impending danger to
the lives or health of the public, or to the legitimate property or personal rights of private
persons”. Our client will be able to establish this element by showing continued nuisance
and deed restriction violations on the part of the Standfest’s. And showing that such acts
caused our client to exert a lot of effort in attempting to remedy the situation.
Furthermore, our client can show that she felt fear and nervousness when considering that
Standfest’s actions would continue. Moreover, the fact that our client is at the point
where she is considering selling her property just to find an end from the on going
wrongful nuisance which could be argued is an impending danger to her health. Our
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client can further argue that while waiver could make the covenant unenforceable, the
covenant did not disappear but may be temporarily unenforceable. The client must
provide evidence that support her actions in dealing with the defendants by calling
authorities and other agencies as proof that there was no waiver of the right to enforce the
deed restriction. Our client will use the M.C.L.A § 600.5807 which allows an actions for
breach of contract or covenant in deeds, if they are filed within ten years of the first
claim. The breach of deed restrictions has continued for approximately eight years. The
first evidence the Brandts can show of Standfast’s violating the deed restrictions occurred
on October, 2002 when the Brandts found Standfast’s Sheep trespassing on their
property. As of today, April 1, 2010 the Brandts are still within the ten-year time limit to
bring the action in breach of deed restrictions.
CONCLUSION
I recommend that we take this case. Although Michigan courts do not have many
primary cases on point with enforcing deed restrictions and issues of waiver, Michigan
courts have in the past looked to out of state court decisions with cases on point and came
to a holding. Also, courts usually refer to public policy in cases where they must balance
the benefits of society and law, and in this case public policy favors the use and
enforcement of deed restrictions. Even if the Brandts do not prevail on the deed
restriction claim because the court can find that their rights were waived, it seems likely
that they will prevail on the nuisance claim.
Respectfully Submitted,
Tatyana Samoylovich
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