Engler v. Tenhaaf
| Decision Date | 16 August 1979 |
| Docket Number | No. 78-351,78-351 |
| Citation | 393 N.E.2d 1266,30 Ill.Dec. 919,74 Ill.App.3d 799 |
| Parties | , 30 Ill.Dec. 919 Lawrence E. ENGLER and Lou Ann Engler, et al., Plaintiffs-Appellants, v. Harry E. TENHAAF, Edna R. Tenhaaf, and Douglas W. Tenhaaf, Defendants- Appellees. |
| Court | United States Appellate Court of Illinois |
Michael E. Massie, Massie & Steele, Galva, for plaintiffs-appellants.
Marjorie L. Schneider, Galesburg, for defendants-appellees.
This is an appeal from an order of the Circuit Court of Knox County dismissing the complaint of plaintiffs for a temporary injunction to prevent defendants from building a house, which plaintiffs alleged would be violative of a restrictive covenant.
On August 5, 1977, plaintiffs Lawrence E. and Lou Ann Engler, and certain other plaintiffs, all residents of the Westview Subdivision in Henderson Township, Knox County, filed an action against defendants Harry E. Tenhaaf, Edna R. Tenhaaf and Douglas W. Tenhaaf, seeking to enjoin defendants from building a house, which plaintiffs alleged would not have 2,000 square feet of habitable floor area, as required by a restrictive covenant. Plaintiffs also sought a temporary injunction to prevent defendants from working on the house during the pendency of the action. Defendants filed two motions to dismiss the action.
The trial court held evidentiary hearings which were heard on three separate days. Following the hearings, the circuit judge presiding, entered an order dismissing plaintiffs' complaint with prejudice.
On appeal in this case, plaintiffs contend that the term "basement" as contained in the restrictive covenant, would include a finished family room, which is partly, but Less than 50 per cent, below grade of the land where it is constructed.
Defendants are the owners of Lot 16 in Westview Subdivision referred to. The lot was subject to the following restrictive covenant:
Defendants' lot, being a lot other than Lots 1 through 13, was subject to the requirement that a dwelling built on it should have 2,000 square feet of habitable floor area.
The house which defendants built contains 1,448 square feet of habitable floor area on the upper level and 784 square feet of habitable floor area in a family room on the lower level, for a total of 2,232 square feet of habitable floor area. Plaintiffs, however, contend that the lower level family room, which is Less than 50% Below grade, is a "basement" and that consequently the restrictive covenant requiring a 2,000 square foot habitable floor area, exclusive of basements, was being violated.
From the record it appears that defendant Douglas Tenhaaf applied for a permit to build a single family residence on Lot 16 in October 1976. In the application defendant had stated he was planning to build a single-family residence with a full basement. However, defendant testified he did not build the house from the plans he had submitted with his application for a construction permit. Those plans had called for a tri-level house and the plans from which defendant actually built the house called for a ranch-style house. Dale Ralston, manager of Alexander Lumber Co., testified that he drew the plans from which defendant built his house and that the house plans called a portion of the lower level of the house a "family room."
It was also shown that Klaus Hemmer, who owned a lot across from defendants' Lot 16, asked defendant Douglas Tenhaaf about compliance with the restrictive covenant. At the time of the conversation, which occurred on defendants' lot, footings were being dug or poured for the house. Hemmer testified that he asked defendant how big the house was going to be and defendant said it was going to be big enough. Hemmer then asked how big that was and defendant assertedly replied 1800 square feet. Hemmer testified that he told defendant that wasn't big enough because the covenant required 2,000 square feet. Defendant then threw the blue prints at Hemmer, according to Hemmer, and told him to check for himself. Defendant, who was called for a section 60 examination, stated that he didn't care about Hemmer or the restrictive covenants.
Later, Tenhaaf, under direct examination, stated that the conversation between Hemmer and Tenhaaf took place at 5:30 P.M. when defendant was pressed for time and was in the process of working on the footings of the house. Defendant testified that Hemmer had asked if the house had 2,000 square feet and defendant replied that it did, offering to show Hemmer the plans. Hemmer then looked briefly at the plans and said he still didn't believe the house would have 2,000 square feet. Defendant stated the conversation lasted for only a few minutes.
Another witness, Dan Stevens, owner of a lot across from defendants' lot, testified that he asked Tenhaaf if he was aware of the covenant requiring a certain amount of square footage and defendant's reply was " * * * what do you want me to do about it now?" Stevens replied that he wanted defendant to bring the house up to specifications. Defendant testified that this conversation took place in the summer of 1977, at which time he was in the process of putting a roof on the house.
It was also shown of record that the home of a Paul D. Keser, on Lot 15, immediately adjacent to defendant's home, has only 1,653.7 square feet of habitable living area. By the time appellee's brief was filed in the instant cause, defendant's house had been completed and was lived in.
The following definitions of "basement" were admitted into evidence, presumably as aids to the trial court in the case:
1. From the City Code of Galesburg:
"Basement shall mean a portion of a building located partly underground, but having Less than half its clear floor-to-ceiling height below the average grade of the adjoining ground."
2. From the Knox County Zoning Ordinance:
3. From Webster's Dictionary:
"The part of a building that is wholly or partly below ground level; esp: such a room having overlaid or hard-surface flooring and housing a...
To continue reading
Request your trial
-
Saddle Hills Community Ass'n v. Cavallari
...Homeowners Association v. Nolan (1982), 104 Ill.App.3d 108, 111, 59 Ill.Dec. 850, 432 N.E.2d 636; Engler v. Tenhaaf (1979), 74 Ill.App.3d 799, 803, 30 Ill.Dec. 919, 393 N.E.2d 1266. Here, the provisions of the Declaration of Protective Covenants evidence an express intent by the parties to ......
-
Cimino v. Dill
...in the covenants should be resolved in favor of natural rights and against restrictions (Engler v. Tenhaaf (3d Dist. 1979), 74 Ill.App.3d 799, 803, 30 Ill.Dec. 919, 922, 393 N.E.2d 1266, 1269; Kessler, 3 Ill.App.3d 905, 278 N.E.2d 816), this generalization cannot be used to ignore or overri......
-
Westfield Homes, Inc. v. Herrick
...In general, covenants should be strictly construed in favor of the full and unlimited use of property. (Engler v. Tenhaaf (1979), 74 Ill.App.3d 799, 803, 30 Ill.Dec. 919, 393 N.E.2d 1266.) However, the rule of strict construction will not be applied to defeat the obvious purpose of the cove......