Real property Deed restrictions Waiver.

Byline: Michigan Lawyers Weekly Staff

Where plaintiffs filed a complaint alleging that the defendant neighbors violated deed restrictions by constructing a new dwelling and changed the landscaping on their property, an award of summary disposition in favor of the defendants should be affirmed based on a 2009 settlement agreement between the parties.

"Plaintiffs brought this action after their neighbors, defendants Barton Rachwal and Andrea Rachwal (the Rachwals), constructed a new dwelling and changed the landscaping on their property in the city of Orchard Lake Village. Plaintiffs generally alleged that the changes violated applicable deed restrictions and local zoning ordinances. Plaintiffs also named the city of Orchard Lake Village (the City) and its building official, Gerry McCallum, as defendants.

"The Rachwals and plaintiffs own neighboring properties. The properties were originally part of a single tract that was subdivided into three parcels. At the time the properties were subdivided, the owner imposed covenants and restrictions to run with the land. Plaintiffs were involved in litigation with other neighbors before the Rachwals purchased their lot in 2011. In litigation commenced in 2006, plaintiffs reached a settlement in 2009 with the Rachwals' predecessor, Matthew Flynn. That settlement order provided, in relevant part, that plaintiffs could enforce the existing deed restrictions in place for the property then owned by Flynn, but upon a sale or transfer of that property, plaintiffs would receive $50,000 from the closing proceeds and 'release any rights to enforce the restrictions on the Flynn property,' but '[i]f no payment is made as provided herein, [plaintiffs] shall continue to have such rights of enforcement.'

"The Rachwals subsequently tendered the $50,000 amount. In lieu of accepting that payment, plaintiffs filed this lawsuit.

"Hence, plaintiffs waived their rights with regard to both the payment and to enforce the deed restrictions by rejecting the payment and filing this action instead.

"The Rachwals presented clear and convincing evidence that plaintiffs agreed to modify the terms of the 2009 settlement agreement to extend the timeframe for making the specified $50,000 payment to obtain a release from the deed restrictions.

"The 2009 settlement established a $50,000 amount for release of the deed restrictions, payable when Flynn sold or transferred the property, but there was no limitation on when the property could...