Beach Forest Subdivision Inc v. Mr Omran
326976
| Mich. Ct. App. | Nov 1, 2016Background
- Dr. Eiad Omran installed large lawn fountains/statues in a subdivision governed by deed restrictions prohibiting "lawn ornaments, sculptures or statues."
- Beach Forest Subdivision Association sued for breach of the declaration and sought injunctive relief and enforcement, including attorney fees.
- The trial court granted plaintiff’s motion for summary disposition on the breach-of-contract claim and awarded attorney fees; Dr. Omran appealed.
- Defendant asserted plaintiff had waived enforcement by tolerating other lawn-ornament violations, that his violation was technical/nominal, that the deed did not cover fountains, and that plaintiff lacked equitable authority to seek injunctive relief.
- The Court of Appeals reviewed de novo and considered whether factual disputes existed to defeat summary disposition and whether the deed’s enforcement clause authorized attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver by selective enforcement | Association may enforce restrictions despite isolated other violations | Enforcement was waived because Association did not uniformly enforce against all homeowners | No waiver: occasional/lower-profile violations do not preclude enforcement; defendant offered no evidence those violations defeated the scheme’s purpose |
| Technical/nominal violation exception | Ornaments/fountains detract from aesthetic scheme and must be enforced | Fountain was a technical or nominal violation that should be disregarded | Not nominal: violation detracted from aesthetic purposes; equitable exception inapplicable |
| Whether fountains fall within restriction | Declaration bans "lawn ornaments, sculptures or statues," which covers these fountain-statues | Fountains are not specifically prohibited because they include water | Fountains are properly characterized as "statues"/"fountain statues" and fall within the prohibition |
| Equitable relief & attorney fees | Deed authorizes prevention/abatement and recovery of reasonable enforcement costs, including attorneys’ fees | Plaintiff could not switch tactics after attempting fines; unclean hands; fees improper if defendant reasonably resisted | Court had authority to enjoin and to award attorney fees under the deed’s clear contractual enforcement provision; fee award was reduced as appropriate |
Key Cases Cited
- AFT Michigan v. State, 497 Mich 197 (standard of de novo review cited)
- Terrien v. Zwit, 467 Mich 56 (de novo review of covenant interpretation)
- Bloomfield Estates Improvement Ass’n v. City of Birmingham, 479 Mich 206 (occasional violations do not foreclose enforcement)
- Taylor Avenue Improvement Ass’n v. Detroit Trust Co., 283 Mich 304 (selective enforcement principles)
- O’Connor v. Resort Custom Builders, Inc., 459 Mich 335 (waiver where violations destroy scheme’s purpose)
- Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club, 283 Mich App 264 (summary-disposition evidence requirements)
- Webb v. Smith, 224 Mich App 203 (technical-violation equitable exception applies only if no detriment to scheme)
- Rofe v. Robinson, 126 Mich App 151 (enforcement of aesthetic covenants justified)
- Haliw v. City of Sterling Heights, 471 Mich 700 (discussion of the American rule on attorney fees)
- Village of Hickory Pointe Homeowners Ass’n v. Smyk, 262 Mich App 512 (contractual fee-shifting as exception to American rule)
- Sentry Ins. v. Lardner Elevator Co., 153 Mich App 317 (contractual attorney-fee recovery)
- Newport West Condo Ass’n v. Veniar, 134 Mich App 1 (contrast where fee award not appropriate due to community benefit finding)
- Wilson v. Taylor, 457 Mich 232 (appellate requirement to cite authority for arguments)