Daily Development for Thursday, October 25, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

This DD is contributed by Dale Whitman. He's got the technique down pretty good, don'tcha think? Dale, you might consider a career in this work.

SERVITUDES; COVENANTS; REMEDIES: A neighbor can enforce a subdivision covenant despite the fact that the plaintiff is in violation of the same covenant.

Pietrowski v. Dufrane, 634 N.W.2d 109, 2001 WI App 175 (Wis.App.2001).

The Dufranes built a free-standing garage for 2 and « cars, having an area of 440 square feet, on their lot despite the fact that the subdivision covenants permitted only one house and garage per lot and no other buildings. The Dufranes already had a garage. (They conceded that the second garage was a covenant violation.) Their neighbor, Mary J. Pietrowski, sued to enjoin maintenance of the new garage and force its demolition.

The evidence showed, however, that there were numerous other sheds and outbuildings in the subdivision, including one on plaintiff Pietrowski's lot. Apparently there had never been any past effort to enforce the covenants as to these sheds. The Dufranes raised three defenses: (1) That the plantiff, by failing to object to the other sheds, had waived her right to enforce the covenant; (2) that the plaintiff should be denied access to equitable remedies because of her unclean hands; and (3) that the presence of the various sheds constituted "changed neighborhood conditions," sufficient to warrant the court's refusal to enforce the covenant.

The court rejected all of these defenses, and ordered the covenant enforced against the Dufranes. With respect to the waiver argument, the court held that the other sheds in the neighborhood had no direct impact on Pietrowski, and therefore she had no obligation to object to them in order to avoid a waiver of her enforcement power. It also found no waiver from the fact that Pietrowski had built her own shed. "[T]he distinguishing factor is that Pietrowski's violation, as well as the other violations in the neighborhood, were slight violations, whereas the Dufranes' violation was material (i.e., a major violation)."

With respect to the "unclean hands" argument, the court took the same approach. "Any violation of the restrictions committed by Pietrowski was technical or slight. Therefore, we are satisfied that Pietrowski's breach was not so great as to result in her having "unclean hands."

Finally, with respect to the "changed neighborhood conditions" argument, the court noted that the main overall purpose of the covenants was to preserve a single-family residential environment. A few sheds here and there didn't change that environment. "The sheds could not be used, nor was there any evidence that they were being used, as a second dwelling or as a place of business contrary to the purpose of the restrictive covenants."

Reporter's Comment 1: The court fails to tell us the size of Pietrowski's shed, or any of the other sheds in the subdivision. Note that even a 10-foot by 10-foot shed is 100 square feet; hence no shed worth having could be all that much smaller than the Dufranes' garage. One wonders where the dividing line is to be drawn between minor and major out-buildings. Aren't they all violations? Distinguishing between "really bad" and "not so bad" violations is a perilous business.

Reporter's Comment 2: In effect, the court says that a plaintiff can have "slightly dirty" hands and still get equitable relief. Perhaps this is a new version of the old equity maxim: "She who seeks equity must pretty much do some equity most of the time." Most courts don't draw such distinctions; instead, they usually say that if you're in violation yourself, you can't get equitable relief.

Reporter's Comment 3: The court's holding on the "changed neighborhood conditions" point is main-stream. In the context of that argument, courts usually focus, as this court did, on whether the area is becoming essentially non-residential. If it has gone far enough in the nonresidential direction, the court will stop enforcing the covenants.

But violations that don't really change the residential character (e.g., Winnebagos in the driveways, asphalt shingles rather than cedar shakes on the roofs, satellite dishes in the yards) won't justify a court in finding "changed neighborhood conditions" even if there are a lot of such violations.

A better argument (but one that was apparently not made here) is that, with so many sheds around and no enforcement against any of them for many years past, the covenant about sheds had been "abandoned" by the neighbors, and hence had become unenforceable. A good example is Fink v. Miller, 896 P.2d 649 (Utah.App. 1995). But the Wisconsin court would probably have handled that argument by saying the covenant had been abandoned as to "little" buildings, but not as to "big" buildings (e.g., 440 square feet).

Reporter's Comment 4: In its effort to avoid finding "changed neighborhood conditions," the court seems to say (although it surely doesn't need to say it to reach its conclusion) that a garage like the Dufranes' really does jeopardize the residential character of the subdivision. "The sheds could not be used, nor was there any evidence that they were being used, as a second dwelling or as a place of business contrary to the purpose of the restrictive covenants. However, based on the size of the building constructed by the Dufranes, it could have been used for such a purpose." Come on, judges who's going to live in a 440 square foot garage? The court's point is a diversion, and tends to mislead. It is absolutely clear that specific covenants provisions in general can and will be enforced whether the violation of them tends to jeopardize the residential character of the subdivision or not.

Editor's Comment 1: For a very similar case on the "changed circumstances" and waiver ruling, see: Swenson v. Erickson, 998 P.2d 807 (Utah 2000). (Where 19 out of 52 lots had garden sheds constructed over 23 years, there were still no "changed circumstances" prohibiting a resident from enforcing a covenant against outbuildings to enjoin construction of a wood shop that would be four times larger than the sheds and would contain woodworking machinery.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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