With the rise in planned unit developments, condominiums, and newer large-scale subdivisions, deed restrictions are increasingly common. In fact, nearly 60 million people live in homes governed by deed restrictions. Although deed restrictions can sometimes be burdensome, the evidence suggests that deed restrictions increase property values. One of the most common restrictions found in deeds are setback requirements, which the house or improvement be a certain number of feet away from the property line.
In Thom v Palushaj, the Michigan Court of Appeals considered whether a house that violated the setback requirement violated a deed restriction. In Thom, the defendants built a 9,000 square foot home with certain features for their wheelchair bound child. Prior to building the home, the defendants were aware of the setback requirements, which stated that the house must be 100 feet from any adjacent homes and 40 feet from the side lot lines. After construction was completed, the defendants’ home was located only 80 feet from the plaintiff-neighbor, and 28 feet from the side lot line.
The neighbor sued the defendants because the house violated the setback requirements. The plaintiffs asked the Macomb County Circuit Court to force the defendants to tear down the house. The Circuit Court ruled that the extreme measure of tearing down the house was unfair, given the circumstances. The plaintiffs appealed and the Court of Appeals reversed. The Court of Appeals ruled that, unless a settlement could be reached, the house must be torn down. The Court of Appeals noted that tearing down the house would be extreme. However, the Court of Appeals ruled that the lower court was not permitted to consider whether it was fair to tear down the house. Instead, the Court of Appeals noted that precedent precluded considering fairness where the deed restrictions were unambiguous. The deed restrictions should be enforced as written.
Thom should serve as a lesson to those who believe that deed restrictions are no big deal. Michigan courts will strictly enforce such restrictions where they are unambiguous, even if it leads to harsh results. As a result, it is important that purchasers or owners of property carefully review any restrictions on their property and abide by such restrictions.
The neighbors and the homeowners association must also enforce the deed restrictions. If the deed restrictions are not enforced in some cases, the courts may refuse to enforce them in other cases, too.
