DocketNumber： Docket 50916
Judges： Kaufman, Burns, Warren
Filed Date： 1/22/1981
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
Faintuck, Shwedel, Wolfram, McDonald & Zipser, for plaintiff.
Kenneth R. McAlpine, for defendant.
Before: N.J. KAUFMAN, P.J., and R.B. BURNS and J.W. WARREN,[*] JJ.
R.B. BURNS, J.
Defendant appeals from the trial court's order entering summary judgment on behalf of plaintiff and granting plaintiff permanent injunctive relief.
Defendant is a resident of the Sylvan Glens subdivision in Troy, Michigan. It is undisputed that he is subject to the deed restrictions limiting the use of property within that subdivision. On January 4, 1978, plaintiff homeowners association brought suit to enjoin defendant from parking his Winnebago motor home in his driveway in open view of other subdivision residents. Plaintiff alleged that this was a violation of a restrictive covenant covering the Sylvan Glens subdivision as well as a violation of a municipal zoning ordinance. The restrictive covenant provided:
*121 "TEMPORARY STRUCTURES: No temporary building of any kind erected on any parcel in this subdivision shall at any time be used as a temporary or permanent residence. Nor shall any trailer be used or kept thereon. Nor shall any equipment or material be stored thereon after the structure is completed. Nor shall any boat be used or kept thereon unless kept within [sic] enclosed garage." (Emphasis added.)
It should be noted that in plaintiff's complaint, defendant's vehicle is referred to as a "Winnebago trailer".
Defendant sought dismissal of the action in motions for summary and accelerated judgment. The court denied these motions. Thereafter, plaintiff moved for entry of summary judgment on its behalf and also sought injunctive relief. A hearing was held on this matter and the parties agreed that defendant would not be in violation of the zoning ordinance if he parked his vehicle behind his residence. By an order dated March 18, 1980, the court granted plaintiff's summary judgment motion and also permanently enjoined defendant from parking or storing his vehicle on his property. The court specifically found that the terms of the restrictive covenant embraced defendant's motor home.
Defendant argues that the court erred in holding that defendant's motor home was included within the terms of the restrictive covenant. We agree.
Generally, restrictive covenants are strictly construed against those claiming the right of enforcement, and all doubts are resolved in favor of the free use of property. Sampson v Kaufman, 345 *122 Mich 48, 50; 75 NW2d 64 (1956), Bastendorf v Arndt, 290 Mich 423; 287 NW 579 (1939). Words used in such covenants must be given their ordinary meaning, and, where clear and unambiguous, they must control. North Cherokee Village Membership v Murphy, 71 Mich App 592; 248 NW2d 629 (1976).
Applying these principles to the instant case we conclude that defendant's motor home was not embraced within the terms of the covenant. While the restriction includes "trailers" within its terms, it does not include motor homes. The two types of vehicles are distinct. Webster's Third New International Dictionary, Unabridged (1965), p 2424, defines "trailer", in pertinent part, as "an automobile-drawn highway vehicle designed to serve wherever it is parked as a dwelling or as a place of business (as an office, laboratory, or field headquarters)". On the other hand, Webster's New Collegiate Dictionary (1975), p 752, defines "motor home" as "an automotive vehicle built on a truck or bus chassis and equipped as a self-contained traveling home". Thus, a trailer and a motor home are different kinds of vehicles. A trailer is not self-propelled but is designed to be drawn by another vehicle. Contrariwise, a motor home is a self-propelled independent vehicle. Therefore, since the term "trailer" cannot be interpreted as embracing a motor home, unless that term is expanded beyond its ordinary meaning, we conclude that the restrictive covenant does not embrace defendant's vehicle. Moreover, defendant's motor home could not reasonably be included within the restrictions against temporary buildings, equipment, material or boats.
*123 Accordingly, the cause is reversed and remanded with instructions to the trial court to rescind its injunctive order and dismiss the action.
Reversed. Costs to defendant.
J.W. WARREN, J., concurred.
N.J. KAUFMAN, P.J. (dissenting).
I respectfully dissent from the well-written opinion of the majority. Although I do acknowledge that the general rule is to afford restrictive covenants strict construction, I do not believe that this rule is immutable.
As the Supreme Court of this state declared almost a century ago:
"While the rule in construing covenants is to construe them most strictly against the covenantor, and most favorably to the covenantee, yet the rule should be carefully observed as nearly as possible by the obvious intention of the parties, which must be gathered from the whole context of the instrument, interpreted according to the reasonable sense of the words." Redding v Lamb, 81 Mich 318, 328; 45 NW 997 (1980).
Thus, I do not think this case should turn on the question of whether a "Winnebago" is a motor home or a trailer but, rather, upon two issues:
1. Is there a restrictive covenant;
2. Has the covenant been violated? *124 As to the first issue, it is agreed by stipulation that a restrictive covenant does exist. As to the issue of the covenant's violation, it seems to me that the covenant was adopted for the benefit of all of the property in the subdivision. That the covenant did not embrace every conceivable excluded item is clear; however, the intent of the restriction is clearer to me than any dictionary definition could be. A panel of this Court in Malcolm v Shamie, 95 Mich App 132, 137-138; 290 NW2d 101 (1980), stated:
"It has been the policy of our judiciary to protect property owners who have complied with the restrictions from violations of the covenants by others. 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 restricted covenants in accordance with their import can work a great injustice to the property owners." (Emphasis supplied.)
Cases involving restrictive covenants are to be determined on their particular facts. Edgewood Park Ass'n v Pernar, 350 Mich 204; 86 NW2d 269 (1957).
On an examination of the briefs and records of this particular case, I believe that the trial judge's evaluation of the facts before her should be affirmed. To my view, the intent of the subdivision's restrictions is clear: to preserve the aesthetic appeal of the property. Dictionary definitions notwithstanding, in common parlance a trailer is often synonymous with a motor home.
"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 *125 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, 253; 222 NW 180 (1928).
In fact, it seems to me that only those who have really "kept up" with the trends in "recreational vehicles", "modular homes", "mobile homes", "motor homes", "campers", and "vans", recognize what are, to me, distinctions far more subtle than a general class of large vehicles which could become eyesores were they to be parked outside of numerous subdivision residences.
Viewing the restriction as a whole, with its prohibition against trailers, boats, heavy equipment and temporary structures, I am convinced that the trial court did not err in including defendant's "Winnebago" within the parameters of the covenant.
As was stated by the Supreme Court:
"The danger to home owners in the building restriction cases is that today's exception becomes tomorrow's precedent and the next day's settled usage. Thus the isolated violation may plant the seed of a general practice which may subsequently lead to a finding of abandonment of the restrictive reciprocal easements. Better the seed were never planted." Oosterhouse v Brummel, 343 Mich 283, 289; 72 NW2d 6 (1955).
In my view, the issue is not whether the "Winnebago" is a trailer within strict statutory or dictionary definition, but whether defendant's activity was of the type intended to be prohibited by the restrictive covenant. Believing that the intent of the restriction is sufficiently clear, I would not plant the first seed and would therefore affirm the trial court.
[*] Circuit judge, sitting on the Court of Appeals by assignment.