By: dmc-admin//July 23, 2001//
And this is so even though plaintiffs, and others in the subdivision, had also violated the restrictive covenant by erecting sheds on their property.
“The Dufranes assert that ‘the distinguishing factor in the present case is that the plaintiff has constructed a building on her property that is in violation of the restriction she seeks to enforce.’ We disagree and conclude that the distinguishing factor is that Pietrowski’s violation, as well as the other violations in the neighborhood, were slight violations, whereas the Dufranes’ violation was material (i.e., a major violation). We see a distinction between building a storage shed and building a garage large enough to store motor vehicles. Therefore, we reject the Dufranes’ argument that Pietrowski waived her right to enforce the restrictive covenant.”
Further, we conclude that the sheds constructed by plaintiffs and other homeowners in the neighborhood did not demonstrate a change in the character of the neighborhood which defeated the purpose of the restrictive covenants.
“The sheds could not be used, nor was there any evidence that they were being used, as a second dwelling or as a place of business contrary to the purpose of the restrictive covenants. However, based on the size of the building constructed by the Dufranes, it could have been used for such a purpose.”
Accordingly, the circuit court properly granted plaintiffs’ request for equitable relief.
Judgment affirmed.
Dist I, Milwaukee County, Kahn, J., Curley, J.
Attorneys:
For Appellant: Michael P. Plum, Milwaukee
For Respondent: Thomas W. Kurzynski, Milwaukee