Brown v. Martin.

• Decision Date: 15 June 2010
• Docket Number: Docket No. 289030.
• Citation: 288 Mich.App. 727,794 N.W.2d 857
• Parties: BROWNv.MARTIN.
• Court: Court of Appeal of Michigan — District of US

288 Mich.App. 727

794 N.W.2d 857

BROWN

v.MARTIN.

Docket No. 289030.

Court of Appeals of Michigan.

Submitted April 13, 2010, at Grand Rapids.Decided June 15, 2010, at 9:10 a.m.

Biringer, Hutchinson, Lillis, Bappert & Angell, P.C., Coldwater (by John D. Hutchinson), for Lloyd and Linda Brown.Parker, Hayes & Lovinger, P.C., Hillsdale (by John P. Lovinger), for Bradley J. and Lisa A. Martin.Before: SERVITTO, P.J., and FITZGERALD and BECKERING, JJ.FITZGERALD, J.

In this action to enforce a restrictive covenant that was written into an original subdivision deed, and continued through automatic 10–year extensions of the covenant, plaintiffs Lloyd and Linda Brown ¹ appeal as of right the trial court's order granting summary disposition under MCR 2.116(C)(10) in favor of defendants. This case arose out of a dispute between the parties concerning the effective date of an amendment of the restrictive covenant that was approved by a majority of the then owners of the subdivision lots during the second automatic 10–year extension. We reverse.

The essential facts are not in dispute. Plaintiffs own lot 35 of Hilltop Terrace Number 2 Subdivision in Hillsdale, Michigan, and defendants own lot 32 in the same subdivision. All lots in the subdivision were originally subject to the following use restriction:

1. USE Each lot in this subdivision and any structure erected thereon shall be used as or in connection with a private residence or a necessary outbuilding incidental thereto and shall be used by the owner or the occupant for single-family residential purposes only.

The restrictive covenant runs with the properties and, pursuant to the covenant, may be amended as follows:

11. GENERAL PROVISIONS

(A) Term: These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten 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.

The deed restrictions were recorded on June 28, 1972. The initial 25–year period ran from that date until June 27, 1997. The covenants were automatically extended for the first 10–year period from that date until June 27, 2007, at which point the covenants were automatically extended for an additional 10–year period.

Defendants remodeled their home and began operating a hair salon in the home in November 2007. Plaintiffs complained to defendants about the home-based business, asserting that operation of the business was in violation of the subdivision's land-use restrictions. In response to plaintiffs' complaints, on March 9, 2008, the required number of the then lot owners passed an amendment of the covenant allowing for certain home-based businesses, including hair salons.²

Plaintiffs filed a complaint seeking declaratory and injunctive relief to enforce the original restrictive-use covenant and to enjoin defendants from operating the hair salon in their home. Plaintiffs claimed that the covenant could be changed under ¶ 11(A) at the expiration of any automatic 10–year extension period. Defendants claimed that such changes could occur at any time after the initial 25–year period when a majority of the then owners of the lots agreed. Thereafter, both parties filed motions for summary disposition. The trial court agreed with defendants' position and granted summary disposition in favor of defendants.

Appellate review of a motion for summary disposition is de novo. Brown v. Brown, 478 Mich. 545, 551, 739 N.W.2d 313 (2007); City of Taylor v. Detroit Edison Co., 475 Mich. 109, 115, 715 N.W.2d 28 (2006). A motion brought under MCR 2.116(C)(10) tests the factual sufficiency of a claim. This Court considers the pleadings, admissions, and other evidence submitted in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists. Brown, 478 Mich. at 551–552, 739 N.W.2d 313; Lee v. Detroit Med. Ctr., 285 Mich.App. 51, 59, 775 N.W.2d 326 (2009). In addition, the scope of a deed restriction is a question of law that this Court reviews de novo. Bloomfield Estates Improvement Ass'n, Inc. v. Birmingham, 479 Mich. 206, 212, 737 N.W.2d 670 (2007).

The issue before this Court is whether the amendment of the covenant, which was passed by the majority of then owners of the lots, took effect immediately upon recording of the amendment, or upon the commencement of the next 10–year automatic extension period. We conclude that the trial court erred by determining that the amendment took immediate effect.

In reviewing the language of restrictive covenants, this Court recognizes that “[b]uilding and use restrictions in residential deeds are favored by public policy.” Rofe v. Robinson (On Second Remand), 126 Mich.App. 151, 157, 336 N.W.2d 778 (1983). Judicial policy requires that we seek to protect property values as well as “aesthetic characteristics considered to be essential constituents of a family environment.” Webb v. Smith (After Second Remand), 224 Mich.App. 203, 211, 568 N.W.2d 378 (1997), quoting Rofe, 126 Mich.App. at 157, 336 N.W.2d 778 (quotation marks and citation omitted). This Court summarized the general rules for construing restrictive covenants in Borowski v. Welch, 117 Mich.App. 712, 716–717, 324 N.W.2d 144 (1982):

When interpreting a restrictive covenant, courts must give effect to the instrument as a whole where the intent of the parties is clearly ascertainable. 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. 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. The restrictions must be construed in light of the general plan under which the restrictive district was platted and developed. 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. 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. 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. [Citations omitted.]

The plain language used in ¶ 11(A) clearly and unambiguously provides for automatic 10–year renewals “unless an instrument signed by a majority of the then owners of the lots has been recorded....” The covenant prescribed a definite period of 10 years for modification by a majority of the then lot owners. The 10–year automatic extension language would be rendered meaningless if the covenant could be amended by a majority...