Facts
- The Brookdale subdivision in Greenfield, Wisconsin was subject to a 1940 recorded “Declaration of Restrictions” limiting each lot to “one family dwelling and one private garage.”
- In May 1998, Richard G. Dufrane and Laura K. Dufrane bought a Brookdale lot improved with a single-family house and an attached two-and-one-half-car garage.
- A few months after purchase, the Dufranes obtained a building permit and began constructing an additional detached two-and-one-half-car garage on the southeast corner of their lot, immediately adjacent to Mary J. Pietrowski’s neighboring property.
- During construction, Pietrowski repeatedly told the Dufranes the detached garage violated the recorded restrictions.
- The Dufranes completed construction of the detached garage.
- Pietrowski sued in circuit court seeking enforcement of the restrictive covenant and an order requiring the detached garage to be razed.
- The Dufranes defended by arguing (1) Pietrowski had waived enforcement because she and others had constructed sheds or similar outbuildings, (2) an injunction requiring removal would be inequitable, and (3) the neighborhood’s character had changed so that the restriction had been abandoned.
- The circuit court granted summary judgment for Pietrowski and ordered the detached garage razed.
- The Dufranes appealed.
Issues
- Whether Pietrowski waived her right to enforce the “one private garage” restriction because she and other homeowners had constructed sheds or other additional structures.
- Whether ordering the detached garage razed was inequitable or unjust so as to bar injunctive relief.
- Whether other owners’ violations were so widespread and substantial that the restrictive covenant was abandoned due to changed neighborhood conditions.
Decision
- The Wisconsin Court of Appeals affirmed the circuit court’s summary judgment in favor of Pietrowski.
- The court held Pietrowski did not waive enforcement; the existence of sheds and other minor or different violations did not clearly show an intent to surrender the right to enforce the restriction against a second, full-size garage.
- The court rejected the claim that enforcement was inequitable, noting the Dufranes had notice of the recorded restriction and proceeded despite repeated warnings during construction.
- The court held the covenant had not been abandoned; the record did not show violations so general and substantial that they defeated the restriction’s purpose.
- The order requiring the detached garage to be razed was affirmed.
Legal Principles
- Restrictive covenants are enforceable when their language is clear, and courts may grant injunctive relief to stop or undo violations.
- Waiver of a restrictive covenant requires conduct showing an intentional relinquishment of the right to enforce; isolated, minor, or different-in-kind violations do not by themselves establish waiver as to a substantial violation.
- Abandonment of a restrictive covenant requires violations that are so general, substantial, and widespread that they show the restriction is no longer relied on and its purpose can no longer be accomplished.
- In considering equitable relief, a violator’s hardship carries little weight when the violator had record notice (and especially actual notice) of the restriction and continued construction anyway.
- Summary judgment is proper when the material facts are not genuinely disputed and the defenses (such as waiver, inequity, or abandonment) fail as a matter of law on the record presented.
Conclusion
In Pietrowski v. Dufrane, the Wisconsin Court of Appeals affirmed summary judgment enforcing a Brookdale subdivision covenant limiting each lot to one family dwelling and one private garage, holding that neighborhood sheds did not establish waiver or abandonment and that equity did not bar an injunction where the homeowners built a second, detached garage with notice of the restriction, so the raze order stood.