Borowski v. Welch

• Decision Date: 22 September 1982
• Docket Number: Docket No. 58412
• Citation: 117 Mich.App. 712,324 N.W.2d 144
• Parties: , 32 A.L.R.4th 643 Mary BOROWSKI and Fox Bay Civic Association, Inc., Plaintiffs-Appellants, v. Chester WELCH, a/k/a John Welch, Defendant-Appellee, and John Combs, Al Decoteau, and Robert Lorenz, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 144

324 N.W.2d 144

117 Mich.App. 712, 32 A.L.R.4th 643

Mary BOROWSKI and Fox Bay Civic Association, Inc. Plaintiffs-Appellants, v. Chester WELCH, a/k/a John Welch, Defendant-Appellee and John Combs, Al Decoteau, and Robert Lorenz, Defendants.

Docket No. 58412.

Court of Appeals of Michigan.

Submitted April 20, 1982.

Decided July 12, 1982.

Released for Publication Sept. 22, 1982.

Stanton L. Walker, Pontiac, for plaintiffs-appellants.

Theodore J. Kohn, Union Lake, for defendant-appellee.

Before KELLY, P. J., and CYNAR and COOK, ^* JJ.

CYNAR, Judge.

Plaintiffs appeal as of right from a May 8, 1981, order of the trial court which denied plaintiffs injunctive relief and granted judgment in favor of defendant, Chester Welch. We reverse.

Defendant is a resident of Fox Bay Subdivision in Oakland County. All of the property within the subdivision, including defendant's, is subject to certain restrictive covenants. The restrictive covenant which is at issue in this case states as follows:

"14. No house trailer, trailer, coach, tent or temporary shelter including fishing shanty, shall be parked, placed, erected or occupied on said premises, except an unoccupied trailer or fishing shanty may be totally stored in a garage thereon."

Plaintiffs, the subdivision homeowner's association and the president thereof, brought an action seeking injunctive relief against defendant, alleging that the defendant was violating the above restriction by parking a motor home in his driveway. The parties stipulated that defendant's motor home was 19 feet to 20 feet in length, 7 feet wide, and approximately 10 feet high. Defendant Welch uses the motor home as daily transportation to and from work and also as a residence during vacations.

According to Welch's testimony, his motor home was self-propelled by a 350 GMC engine. It was furnished with a gas furnace, appliances, beds, and toilet facilities. The motor home was carpeted and could sleep from four to six persons. It did not have a power generator, but was equipped with a 110-volt hook-up and had a limited source of battery power. Defendant Welch testified that on one occasion, when an ice storm caused a power failure in his home, he spent the night in the motor home parked in his driveway. Defendant parked the motor home in his driveway whenever he was not using it.

John Kennedy, a real estate appraiser, testified that property values in a subdivision such as Fox Bay are negatively affected by the presence of motor homes parked in driveways within the subdivision. Plaintiff Borowski testified that, as president of the homeowner's association, she believed motor homes were prohibited by the restrictive covenant in question because a motor home is embraced within the definition of a "coach" or "temporary shelter", both of which are proscribed by the restriction.

The trial court granted judgment in defendant's favor and rendered a lengthy opinion from the bench. The trial judge relied heavily on Colony Park Ass'n v. Dugas, 44 Mich.App. 467, 205 N.W.2d 234 (1973), and Sylvan Glens Homeowners Ass'n v. McFadden, 103 Mich.App. 118, 302 N.W.2d 615 (1981), lv. den. 411 Mich. 1050 (1981), in reaching his decision. He summarized his reasoning as follows:

"In my judgment it is best that the Court, reviewing this wording, arrive at the decision on the same basis and rationale as was arrived in the case of Colony Park, and that is that the requested restriction reluctantly is denied for the following reasons

"The restrictions themselves fail to specify motor homes for inclusion. That there is nothing to indicate that contemporary motor homes were within the contemplation of the drafters, and I emphasize drafters in this case because I do not dispute the fact that people who buy into this property now, may have drawn a conclusion that motor homes were prohibited, but I rely on the drafters themselves in the inception and for me to say that it was reasonable for those buying into this property to conclude that motor homes were prohibited, would be as unfair as for me to conclude that buying into this neighborhood relied on there not being any restrictions to motor homes.

"Thirdly, the rule of construction which provides that where restrictions are ambiguous or uncertain they shall be resolved in favor of free use of the property."

The issue submitted for our determination is whether the trial court erred in ruling that defendant had not violated a certain restrictive covenant by parking a motor home in his driveway, based upon a finding that a motor home was not a "coach" or "temporary shelter" and therefore was not prohibited.

Review of this case in equity is de novo. Cooper v. Kovan, 349 Mich. 520, 84 N.W.2d 859 (1957).

The trial judge held that defendant had not violated the covenant by parking a motor home in his driveway. The judge gave three reasons for the holding: (1) the restriction fails to mention motor homes specifically; (2) there is nothing to indicate that the drafters intended to prohibit motor homes; and (3) ambiguous restrictions must be construed in favor of the free use of property.

Plaintiffs argue that the drafters' intent to prohibit motor homes was clear notwithstanding the fact that they were not specifically mentioned. In addition, plaintiffs urge this Court to find that the trial court misapplied the rule that ambiguities must be resolved in favor of the free use of property. See Sampson v. Kaufman, 345 Mich. 48, 50, 75 N.W.2d 64 (1956). Plaintiffs contend that that rule is but one of several rules of construction and was not applicable here where the parties' intent was clear. The general rules which plaintiffs point to have been gathered from numerous cases.

When interpreting a restrictive covenant, courts must give effect to the instrument as a whole where the intent of the parties is clearly ascertainable. Cooper, supra, 349 Mich. 527, 84 N.W.2d 859. Where the intent is clear from the whole document, there is no ambiguous restriction to interpret and the rules pertaining to the resolution of doubts in favor of the free use of property are therefore not applicable. Id., 527-528, 84 N.W.2d 859. In placing the proper construction on restrictions, if there can be said to be any doubt about their exact meaning, the courts must have in mind the subdivider's intention and purpose. Ottawa Shores Home Owner's Ass'n, Inc. v. Lechlak, 344 Mich. 366, 73 N.W.2d 840 (1955). The restrictions must be construed in light of the general plan under which the restrictive district was platted and developed. Id. In attempting to give effect to restrictive covenants, courts are not so much concerned with the grammatical rules or the strict letter of the words used as with arriving at the intention of the restrictor, if that can be gathered from the entire language of the instrument. Tabern v. Gates, 231 Mich. 581, 583, 204 N.W. 698 (1925). Moreover, the language employed in stating the restriction is to be taken in its ordinary and generally understood or popular sense, and is not to be subjected to technical refinement, nor the words torn from their association and their separate meanings sought in a lexicon. Seeley v. Phi Sigma Delta House Corp., 245 Mich. 252, 222 N.W. 180 (1928). Covenants are to be construed with reference to the present and prospective use of property as well as to the specific language employed and upon the reading as a whole rather than from isolated words. Donnelly v. Spitza, 246 Mich. 284, 224 N.W. 396 (1929).

It is plaintiffs' position that if those rules are applied properly to this case, plaintiffs must prevail. We agree. In reviewing the covenant as a whole, construing it with reference to the present and prospective use of the property, and being concerned more with the intent of the restrictor than the strict letter of the words used, and by taking the language in its generally understood or popular sense without technical refinement and without seeking dictionary definitions, we conclude that the covenant prohibits the parking of motor homes such as defendant's within the subdivision. The evident purpose of the restriction was to prohibit a general class of large vehicles, whether automobile-drawn or self-propelled. The drafters apparently believed that such items are eyesores and destroy the aesthetics of a neighborhood. The mere fact that the restrictive covenant failed to mention motor homes which, it is important to note, were not in existence when the restriction was written, should not preclude a finding that the drafters intended to prohibit such vehicles. As the Supreme Court said in Donnelly, supra, 286-287, 224 N.W. 396:

"It is hardly to be supposed that a restriction in 1919 was intended to irrevocably fix the character of construction to that...