Daily Development for Wednesday, September 29, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

SERVITUDES; RESTRICTIVE COVENANTS; AMENDMENT: Amendment of restrictive covenant must apply uniformly to all properties affected by the covenant unless approval of the amendment is unanimous.

Maatta v. Dead River Campers, Inc., 2004 WL 2098466 (Mich App. 9/21/04) http://www.michbar.org/opinions/appeals/2004/092104/24542.pdf

Plaintiffs owned several lots in a subdivision of recreational property. Most of the lots were developed with campsites or cabins. A provision of the CC&R’s restricted the lots to “single-family residential purposes and incidental recreational uses.” For almost 30 years, however, one of the lots had been used as a public access site, and was equipped with a concrete boat launch ramp, pit toilets and a parking lot. Apparently this “access lot” belonged to the owners’ association and the other lot owners welcomed the use, although the plaintiffs had had some bad experiences from the activity on this lot. When the plaintiffs attempted to get a resolution closing the access lot, the resolution failed in a shareholder vote.

Plaintiffs then sought to enforce the “single family” restriction against the lot, but the other owners responded by voting to amend the CC&R’s exempting the access lot from this restriction. The CC&R’s permitted amendments by a “supermajority,” (not unanimous) vote. Plaintiff, however, pressed on with its suit, claiming that an amendment to a restrictive covenant that did not apply uniformly to all affected lots required a unanimous vote of the owners affected by the CC&R’s, and that the “supermajority amendment” procedure provided for in the bylaws could not be used for this type of amendment.

The trial court found in favor of the amendment, but the Michigan Court of Appeals reversed, concluding that the established precedent (citing numerous cases from around the country, apparently collected in an ALR annotation) clearly held that parties holding lots in restricted subdivisions were entitled to expect that all burdened properties would be treated in the same way. Otherwise, the court pointed out, 51% of the owners (or whatever majority the Declaration required) could exempt themselves from any restrictions while leaving the rest of the owners still bound.

The court noted that the principle remained true even in subdivisions where not every lot was restricted in the same way. Even in this case, those bound by a given restriction were entitled to expect that no other lot similarly bound would get any special favors by vote of the association.

Comment 1: This is a very useful case making an important point. Note that the trial court had found that the “fairest” resolution here was to permit the community to continue to use the “public access” lot as it always had, concluding that, in context, the impact of the activity on the lot was not so awful as to amount to a nuisance or otherwise violate another covenant prohibiting “offensive” or “annoying” activities. The case clearly adopts a “property rights” vs. “communitarian” view of the situation, and in doing so, it appears to be on solid ground in the precedent.

Comment 2: The editor is somewhat puzzled as to why the defendants did not raise some sort of waiver notion or even a prescriptive use claim, as the use in question apparently had been going on since the mid-1970's.

Readers are encouraged to respond to or criticize this posting.

Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.


DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 - 15 messages per work day.
Daily Developments are posted every work day. To subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message signoff DIRT to the address:


for information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address:


DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:

Members of the ABA Section on Real Property, Probate and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org


To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu with the text SIGNOFF DIRT.

Please email manager@listserv.umkc.edu if you run into any problems.
See <http://www.umkc.edu/is/cs/listserv/unsubscribing.htm> for more information.