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

1

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

2

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

3

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.

4

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

5

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

6

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,

7

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

8

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.

9

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

10

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

11

(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.

12

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

13

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

14