GEORGE TOTTIS V DEARBORN HILLS CIVIC ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
GEORGE TOTTIS and TINA TOTTIS,
UNPUBLISHED
June 18, 2002
Plaintiffs/CounterdefendantsAppellants,
v
DEARBORN HILLS CIVIC ASSOCIATION,
INC., GEORGE DARANY, DOROTHY
DARANY, TIMOTHY HORAN, JANE HORAN,
DR. WILLIAM KACH and ROBERT D. ROCK,
No. 229996
Wayne Circuit Court
LC No. 99-932614-CH
Defendants-Appellees,
and
SCOTT BAIN,
Defendant/CounterplaintiffAppellee.
Before: Murphy, P.J., and Jansen and Kelly, JJ.
PER CURIAM.
Plaintiffs appeal as of right from a judgment, following a bench trial, granting injunctive
relief to defendants and enjoining permanently the construction of any structure on plaintiffs’
vacant lot. We reverse.
At issue are two deed restrictions concerning a vacant lot purchased by plaintiffs. The
first restriction would prohibit plaintiffs from building any structure on the lot because it was not
one entire residential lot as platted, but instead a split lot. The second restriction would prohibit
the placement of plaintiffs’ garage as indicated in architectural plans. Plaintiffs argue that the
two deed restrictions do not apply to their property because the character of the neighborhood
had changed in a manner that indicated that the residents had abandoned the deed restrictions.
Specifically, plaintiffs argue that the restrictions were unenforceable against them under the
doctrines of waiver and estoppel. We agree that the doctrine of waiver is applicable, making it
unnecessary to address the estoppel claim.
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This Court reviews equitable actions de novo. Webb v Smith (After Second Remand), 224
Mich App 203, 210; 568 NW2d 378 (1997). This Court reviews the findings of fact by a trial
court sitting without a jury under the clearly erroneous standard. Gumma v D & T Construction
Co, 235 Mich App 210, 221; 597 NW2d 207 (1999); MCR 2.613(C). A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court on the entire record
is left with the definite and firm conviction that a mistake has been committed. Gumma, supra at
221. This Court reviews a trial court's conclusions of law de novo. Id. Where the trial court's
factual findings may have been influenced by an incorrect view of the law, our review of those
findings is not limited to clear error. Walter v Snyder, 239 Mich App 453, 456; 608 NW2d 97
(2000).
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. Rofe v Robinson (On Second Remand), 126 Mich App 151, 155; 336 NW2d 778
(1983). However, where variations from deed restrictions constitute minor violations, the
concept of waiver does not apply. Id. There is no waiver where the character of the
neighborhood intended and fixed by the restrictions remains unchanged. Id.
In the instant case, Article V of the restrictions expressly prohibits construction on split
lots. This Court has recently held that construction on a lot where no house was allowed was not
a technical, or a minor, violation of the restrictive deed. Webb, supra at 212. Therefore,
plaintiffs’ proposed plans to construct a house on the split lot constituted a major violation to the
deed restrictions. The question that remains is whether defendants waived their right to enforce
this restriction against plaintiffs.
A review of the facts in this case show that 43 out of 1,489 houses in the subdivisions
were built on less than fully platted lots.1 Four of the forty-seven houses on plaintiffs’ street
were built in violation of Article V. The evidence also shows that no action to enforce Article V
was ever taken against any of the owners of houses that violated Article V, and defendant
association, charged by the deed restrictions with approving the architectural plans, obviously
had granted its approval for the construction of these houses. This evidence establishes that the
character of the neighborhood intended and fixed by the restriction has changed. Because there
is no record of defendants ever insisting on compliance with the deed restriction, and because
plaintiffs would be damaged if defendants are now allowed to enforce the restriction, defendants
have waived any right to enforce the restriction. Therefore, the trial court erred in enjoining
plaintiffs from building a house on the vacant lot, and plaintiffs are entitled to entry of a
judgment prohibiting enforcement of Article V as to plaintiffs’ lot.
1
Although the dissent maintains that we are reversing on a flimsy statistical basis, the dissent
then proceeds to focus on a statistical percentage in support of her position. On forty-three
separate occasions, a number we find significant in the context of a waiver discussion, persons
were allowed to proceed with the monumental task of building homes on less than one fully
plotted lot without a single challenge to their actions. We are left with a firm and definite
conviction that the trial court committed a mistake in finding that the character of the
neighborhood, as to building homes on smaller lots, remained unchanged.
-2-
Similarly, plaintiffs were entitled to injunctive relieve regarding the garage setback
restrictions, Article VII, under the doctrine of waiver. Eleven of the forty-seven houses on
plaintiffs’ street were in violation of the garage setback restrictions. The evidence showed that
no previous action was ever taken in the subdivision to enforce the provisions of Article VII.
Furthermore, it is undisputed that, during the proceedings in the instant case, neighbors were
allowed to expand their home in violation of Article VII. Pursuant to a settlement with
defendant association, the association approved plaintiffs’ second architectural plan, including
the placement of the garage, and plaintiffs may proceed with the plan because the remaining
defendants waived enforcement of the deed restrictions.
Reversed and remanded to the trial court for entry of judgment consistent with this
opinion. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Kirsten Frank Kelly
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