The Michigan Court of Appeals has ordered the complete or partial destruction of a $1.1 million home in Macomb County because the owners built it too close to their property lines.
The home owners, Simon and Saca Palushaj have been locked in an eight-year dispute with Gerald and Aileen Thom. The Thoms are the next-door neighbors who are insisting that deed restrictions in Washington Township’s Lakewood Hills Subdivision be enforced.
The restrictions at issue require homes to be 100 feet apart and at least 40 feet from the side lot line. The Palushaj’s home is 80 feet from the Thom’s and 28 feet from the side lot line.
When the Palushajs began construction, the Thoms expressed concerns about deed restriction violations. They were concerned enough that, in 2004, they tried to enjoin construction. The trial court refused to grant an injunction, opining that the deed restrictions were either unenforceable or inapplicable. The court apparently questioned the Thoms’ motives, offering “unclean hands” as another reason to deny them relief.
But the court also cautioned the Palushajs to proceed at their own risk. Proceed they did, building a 9,000 square foot home, complete with specialized construction to aid one of their children who has cerebral palsy.
The Thoms proceeded as well, taking an appeal to the COA. In 2007, the appeals court ruled that the restrictions were enforceable. The panel handed Judge James Biernat of the Macomb County Circuit Court the unenviable task of fashioning a remedy.
On remand, the Thoms pressed for demolition of the home, or at least enough of it to eliminate the deed restriction violation.
Biernat said there were some equities to balance. After holding a hearing, he visited the parties’ homes. Biernat apparently wasn’t impressed with the Thoms’ claims that they were being “crowded in” by the Palushajs’ home. The Palushajs, on the other hand, would be economically crippled if ordered to raze the home.
Biernat ordered the Palushajs to pay the Thoms $183,000 in costs and attorney fees, and to maintain landscaping that limits the view between the two properties.
The Thoms went back to the COA and argued Biernat lacked the discretion to balance the equities and to order a remedy that didn’t actually enforce the deed restrictions.
The COA agreed. The appeals panel noted that when the case was remanded to Biernat:
[T]he burden [was] on the trial court “for a determination of the appropriate remedy.” Accordingly, the trial court must fashion a remedy consistent with this opinion and consistent with the controlling opinion of [Webb v Smith (Aft Sec Rem), 224 Mich App 203; 568 NW2d 378 (1997)]. Thoms v Palushaj, unpublished opinion per curiam of the Court of Appeals, issued August 23, 2007 (Docket No. 286074)[.]
In Webb, a case almost factually identical to the Thom-Palushaj dispute, the COA “noted that the amount of damages the defendants would incur if an injunction was issued was wholly immaterial to the process of determining a remedy.” The Webb court correctly upheld the trial court’s decision to refrain from balancing the equities.
So, the Thoms’ remedy is exactly what they asked for, ruled the COA. Along with the ruling, there was an undercurrent of “can’t we all just get along?”
[W]e vacate the trial court’s order and remand with instructions to enter an order requiring defendants to bring their home into compliance with the applicable deed restrictions. …
While it appears from the record that plaintiffs are unlikely to reach a compromise with defendants that will allow defendants to maintain their home as it currently exists, we note that such a compromise would perhaps best serve the interests of each of the parties.
The case is Thom, et al. v. Palushaj, et al.
The Michigan Lawyer 