Restrictive covenants; Waiver; Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham; Effect of an anti-waiver clause; Quality Prod & Concepts Co v Nagel Precision, Inc; Keeping cows on the property; Construction of a fence; Allowing vehicles to be driven on nonconcreted parts of the property; Construction of a shelter for animals; Award of attorney fees as prevailing parties; Amount of the fees; Smith v Khouri; Wood v Detroit Auto Inter-Ins Exch

The court held that even if defendants were correct that the two property restrictions at issue had been waived to a limited extent, this waiver did “not allow the ‘more serious’” violations that occurred here. Further, there was no material question of fact that defendants violated the restrictions by (1) keeping cows on their property, (2) constructing a fence, (3) allowing vehicles to be driven on nonconcreted parts of their property, and (4) constructing a shelter for the cows and a ram. The court also found that the trial court did not abuse its discretion in awarding plaintiffs $56,370 in attorney fees as prevailing parties. Thus, it affirmed summary disposition for plaintiffs and the attorney fee award. The parties “own lots in a five-lot neighborhood governed by a restrictive covenant known as the” agreement. Defendants first argued “that the neighbor association members waived their right to enforce parts of the agreement by” not contesting various past violations. But the court noted the agreement contained an anti-waiver clause. Under Bloomfield Estates, only “‘if the present violation constitutes a “more serious” violation of the deed restriction may a plaintiff contest the violation despite the plaintiff’s acquiescence to prior violations of a less serious character.’” Among the restrictions at issue here, Restriction 2 “prohibits off-driveway use of vehicles on the lots, and Restriction 20 . . . prohibits temporary structures ‘except as may be necessary during the period of construction of permanent structures.’” The court concluded that even if Restriction 2 had “been waived to a limited extent by boat towing, that waiver does not allow the ‘more serious’ violation of Restriction 2 that occurred in this case by the off-driveway use of trucks on a daily basis.” And even if violations of Restriction 20 had “been waived to a limited extent by the existence of a storage shed, that waiver does not allow the ‘more serious’ violation of Restriction 20 that occurred in this case by the animal shelter.” The court also held that the trial court correctly determined “there was no genuine issue of material fact that cows are included in the agreement’s definition of exotic animals and defendants violated Restriction 7 by keeping cows on their property.” Further, defendants “violated the agreement by constructing the fence” and the shelter “because they failed to provide the neighbor association with plans and specifications for” them before constructing them.