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The Importance of Complying With Deed Restrictions

A recent case from Macomb County demonstrates the harsh consequences that may result for individuals who fail to comply with private neighborhood deed restrictions. The dispute surrounds a 9,000 square foot, $900,000 Washington Township home built approximately ten years ago by Simon and Saca Palushaj. The home contains a tennis court, basketball court, and an elevator for one of the couple’s handicapped children.

Early into the construction, neighbors informed the Palushajes that the home violated the subdivision’s deed restrictions because it was 80 feet from the neighbors’ home instead of the minimum 100 feet, and 28 feet from the property line instead of the minimum 40 feet. While the construction violated the deed restrictions, it complied with Washington Township’s zoning standards. The Palushajes apparently believed that the deed restrictions were no longer valid and did not apply to their new construction.

In 2004, while construction was still ongoing, the neighbors filed suit against the Palushajes for violating the deed restrictions. Despite receiving a warning from a Judge to continue construction at their own risk, the Palushajes completed the home. In 2010, a Judge ordered the couple to pay $184,000 to the neighbors and to install approximately $40,000 worth of landscaping. The Michigan Court of Appeals overruled the decision and instructed the lower court that it cannot order any form of equitable relief. The Palushajes appealed to the Michigan Supreme Court but the Court declined to hear the case.

In December 2012, the Judge issued a Court Order that required the Palushajes to comply with the deed restrictions by July 1, 2013 or be forced to demolish part or all of the home. The couple failed to meet the deadline and then sought to extend it, arguing that six months was not sufficient to comply with the Order. The couple stated they are working to find a contractor to potentially move the home to a different lot, and that being forced to demolish and rebuild the home will financially ruin them.

On Monday, Macomb County Circuit Judge Mark Switalski reiterated that he cannot order any equitable relief and thus cannot prevent the home from demolition. On Friday, the couple faces a show cause hearing to explain to the Court why they should not be held in contempt for not complying with the Order. The neighbors’ attorney plans to seek incarceration as the penalty for non-compliance.

This case is a prime example of what may result if individuals fail to comply with private deed restrictions, even if they comply with their local land use and zoning regulations. If you have any land use or zoning questions, the attorneys at Dalton & Tomich, plc can help you answer them.

A full article about the dispute is available here.

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