Summary Judgment – Restrictive Covenant

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WI Court of Appeals – District IV

Case Name: Thomas G. Zeal, et al. v. Ron Hill Estates Architectural Control Committee, et al.

Case No.: 2018AP2117

Officials: Fitzpatrick, P.J., Blanchard, Kloppenburg, JJ.

Focus: Summary Judgment – Restrictive Covenant

Thomas and Christine Zeal, lot owners in a residential subdivision, appeal an order denying their summary judgment motion and granting summary judgment in favor of the other subdivision lot owners and the subdivision’s Architectural Control Committee (collectively, “the neighbors”). Under restrictive covenants that govern lots in the subdivision, the Committee must approve proposed alterations to existing structures on any lot. The Committee denied the Zeals’ request to build a second attached garage based on a covenant that governs garages.

The Zeals sought declaratory relief in circuit court, namely, a declaration that the garage covenant does not prohibit the Zeals from adding a second attached garage, and also sought an order that the Committee must grant the Zeals’ request. The circuit court rejected this relief. The court instead agreed with the neighbors that the garage covenant unambiguously restricts each lot to a single attached garage and granted summary judgment to the neighbors.

Case law requires that, in order to be enforceable, restrictive covenants must be “‘expressed in clear, unambiguous, and peremptory terms.’” Diamondback Funding, LLC v. Chili’s of Wis., Inc., 2004 WI App 161, ¶13, 276 Wis. 2d 81, 687 N.W.2d 89 (quoting Crowley v. Knapp, 94 Wis. 2d 421, 435, 288 N.W.2d 815 (1980)). We conclude that the garage covenant does not contain a clear, unambiguous, and peremptory prohibition on the Zeals’ lot having more than one attached garage. Accordingly, we reverse the order granting summary judgment in the neighbors’ favor. Further, because the neighbors concede that summary judgment in favor of the Zeals is appropriate if the garage covenant does not contain such a prohibition, we remand with directions that the circuit court enter summary judgment in the Zeals’ favor.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.