Rofe v. Robinson

126 Mich. App. 151 (1983) 336 N.W.2d 778

ROFE
v.
ROBINSON

Docket No. 69161.

Michigan Court of Appeals.

Decided April 29, 1983.

Eggenberger, Eggenberger, McKinney & Weber, P.C. (by Stephen L. Weber), for plaintiffs.

Dykema, Gossett, Spencer, Goodnow & Trigg (by W.A. Steiner, Jr., and Dennis M. Haffey), for defendants.

Before: N.J. KAUFMAN, P.J., and D.E. HOLBROOK, JR., and D.F. WALSH, JJ.

ON SECOND REMAND

PER CURIAM.

On remand from the Supreme Court,^[1] we are to rule on the issues of laches, waiver and interpretation of deed restrictions which were not considered in our previous decisions in this case.^[2]

I

LACHES

Defendants argue that plaintiffs cannot enforce the deed restrictions in question because they neglected to take immediate action to do so, thereby making them guilty of laches.

In determining whether a party is guilty of laches, each case must be determined on its own particular facts. Edgewood Park Ass'n v Pernar, 350 Mich. 204, 209; 86 NW2d 269 (1957). The doctrine of laches was explained in In re Crawford Estate, 115 Mich. App. 19, 25-26; 320 NW2d 276 (1982), as follows:

"Laches is an affirmative defense which depends not merely upon the lapse of time but principally on the requisite of intervening circumstances which would render inequitable any grant of relief to the dilatory plaintiff. * * * For one to successfully assert the defense of laches, it must be shown that there was a passage of time combined with some prejudice to the party asserting the defense of laches. * * * Laches is concerned mainly with the question of the inequity of permitting a claim to be enforced and depends on whether the plaintiff has been wanting in due diligence. * * *" (Citations omitted.)

See also Lothian v Detroit, 414 Mich. 160, 168-169; 324 NW2d 9 (1982); City of Hancock v Hueter, 118 Mich. App. 811, 817-818; 325 NW2d 591 (1982).

In the instant case, plaintiffs instituted suit against defendants with reasonable promptness after it was made evident to them that defendants intended permanent violations of the applicable deed restrictions. See Edgewood Park Ass'n, supra, p 209. Therefore, we believe plaintiffs were not wanting in due diligence. The trial judge's conclusion that plaintiffs were not guilty of laches was correct.

II

WAIVER

Defendants argue that plaintiffs have waived their rights to enforce the deed restrictions against defendants by failing to object to the use of a structure on another lot as the office of a construction company.

The Court in Bigham v Winnick, 288 Mich. 620, 623; 286 N.W. 102 (1939), stated that the right to enforce a restrictive covenant may be lost by waiver if by one's failing to act he leads another to believe that he will not insist upon the covenant and the other is thereby damaged. However, where variations from deed restrictions constitute minor violations, the concept of waiver does not apply. See Rich v Isbey, 291 Mich. 119, 122-123; 288 N.W. 353 (1939); Taylor Avenue Improvement Ass'n v Detroit Trust Co, 283 Mich. 304, 308; 278 N.W. 75 (1938). There is no waiver where the character of the neighborhood intended and fixed by the restrictions remains unchanged. DeGalan v Barak, 223 Mich. 378; 193 N.W. 812 (1923).

In the instant case, the record reveals that defendants relied upon the construction company's use of its property for office purposes in believing that the deed restrictions would not be applied against them either. Therefore, the question of whether waiver does or does not apply depends upon whether the construction company's use constituted a minor violation or one extensive enough to indicate an abandonment of the deed restrictions and a change in the character of the neighborhood from that intended by those restrictions. In our opinion, the doctrine of waiver does not apply.

The construction company's use of its property for office purposes lies in a very grey area of the law. The use appears to be more than a minor violation, but at the same time it does not appear to be so extensive a violation as to indicate abandonment. Nor does it appear to amount to a change in the character of the neighborhood. Mindful of the fact that the trial judge actually viewed the property in question, we uphold his conclusion that there was no waiver of the deed restrictions.

III

INTERPRETATION OF DEED RESTRICTIONS

Defendants argue that the deed restrictions themselves provide that a zoning ordinance is to prevail over the restrictions in the event of a conflict between the two. They base this argument on the language of § 3 of the deed restrictions, which states:

"No building shall be erected, altered or permitted on any part of the restricted premises except it shall conform to the provisions of any zoning ordinance enacted by any township, village, city or county wherein such part of the restricted premises may be situated which may be applicable and in effect at the time of actual construction, provided, that any departure or deviation from the provisions of such zoning ordinance permitted as provided by and in accordance with said ordinance may be made with the approval in writing of the owner but not otherwise."

Building and use restrictions in residential deeds are favored by public policy. Beverly Island Ass'n v Zinger, 113 Mich. App. 322; 317 NW2d 611 (1982). It is the policy of the judiciary to protect property owners who have complied with deed restrictions from violations of the restrictions by others. Bellarmine Hills Ass'n v Residential Systems Co, 84 Mich. App. 554, 559; 269 NW2d 673 (1978), lv den 405 Mich. 836 (1979). As explained by the Court in Bellarmine, supra, p 559:

"Where restrictive covenants describe the character of permissible structures to be erected upon the property, they also contemplate that use and occupancy of the property shall be commensurately restricted. * * * Covenants of restriction, especially those pertaining to residential use, preserve not only monetary value, but aesthetic characteristics considered to be essential constituents of a family environment. Consequently, failure to give complete effect to restrictive covenants in accordance with their import works a great injustice to the property owners." (Citations omitted.)

See also Malcolm v Shamie, 95 Mich. App. 132, 137-138; 290 NW2d 101 (1980).

When interpreting a restrictive covenant, courts must give effect to the instrument as a whole. If there is any doubt as to the exact meaning of the restrictions, the court must consider the subdivider's intention and purpose. Furthermore, the restrictions must be construed in light of the general plan under which the area subject to those restrictions was platted and developed. Holderness v Central States Finance Corp, 241 Mich. 604, 607; 217 N.W. 764 (1928); Borowski v Welch, 117 Mich App 712, 716-717; 324 NW2d 144 (1982). On the other hand, restrictive covenants are to be construed strictly against those seeking enforcement and all doubts are to be resolved in favor of the free use of property. A court of equity will not enlarge the scope of deed restrictions beyond the clear meaning of the language employed. North Cherokee Village Membership v Murphy, 71 Mich. App. 592, 595; 248 NW2d 629 (1976), see also Beverly Island Ass'n, supra.

In the instant case, reading the deed restrictions as a whole, we conclude that the trial court was correct in interpreting § 3 as not allowing defendants to develop their property as office sites. It is clear that the purpose and intent of the entire restrictive instrument is for residential development only. The language in § 3 was meant only to incorporate zoning standards insofar as they comport with the deed restrictions. It was not intended to establish zoning as the ultimate determinant of how this land would be developed. We believe the clear meaning of the language of the deed restrictions supports the conclusion that the restrictions were to prevail over any zoning ordinances in the event of a conflict between the two.

Affirmed.

NOTES

[1] Rofe v Robinson, 415 Mich. 345; 329 NW2d 704 (1982).

[2] This is the third time this case has come before this Court. See 93 Mich. App. 749; 286 NW2d 914 (1979), remanded 408 Mich. 899; 295 NW2d 228 (1980), and 99 Mich. App. 404; 298 NW2d 609 (1980).