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COURT OF APPEALS DECISION DATED AND RELEASED January 18, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2271-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JUNIPER ESTATES
COMPLIANCE COMMITTEE
CONSISTING OF:
MARY BRENNAN,
ROBERT BRIGGS,
L. PETER GROVES,
ROBERT WEISKE
and RAY WUENSCH,
Plaintiffs-Respondents,
v.
JERRY LYDON,
PEGGY LYDON,
JAMES HOFF
and ROSEMARIE HOFF,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for La Crosse County:
PETER G. PAPPAS, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Jerry Lydon, Peggy Lydon, James Hoff and Rosemarie
Hoff appeal from a judgment granting an injunction against them.[1] The issue is whether an amendment to a
restrictive covenant was made in a valid manner. We affirm.
This action started with
a complaint by the Juniper Estates Compliance Committee against the Lydons and
the Hoffs. It alleged that the
defendants are property owners in the Juniper Estates development and are bound
by its restrictive covenant. The
Committee sought an injunction ordering the Lydons to remove a basketball hoop,
backboard and support from "the front area" of their lot, and
ordering the Hoffs to remove an exterior clothesline.
The basketball equipment
and clothesline are prohibited only by the most recent amendments to the
restrictive covenant. The issue is
whether the amendments were approved by a sufficient number of property owners. If they were, the defendants concede they
are in violation. The case was tried to
the court on stipulation. The following
facts are drawn from the stipulation.
The restrictive covenant
was first signed and recorded in 1982.
Article VII thereof was titled "Modification of Restrictions,"
and stated in relevant part:
"These restrictions may be altered, changed or modified at any time
by the consent of three-quarters of the property owners of the lots in Juniper
Estates ...." An amendment was
executed and recorded in 1983. A second
amendment to the covenant was executed by various individuals on various dates
in December 1986 and recorded in January 1987.
This is the amendment at issue.
When the original plat
of the development and the initial covenant were made, Juniper Estates
consisted of fifty-one separate lots.
Before the recording of the second amendment in 1987, certain lots in
the development "were divided in the sense that certain lots were split
and conveyed to various purchasers and were separately described, taxed and
owned," for a total of eighty-one "separately described
parcels."[2]
The dispute between the
parties is over the number of "votes" that existed when the second
amendment was executed.[3] If, as the Committee argues, each of the
eighty-one parcels had one vote, the parties have stipulated that at least
three-quarters of the owners supported the amendments. However, the defendants argue that each of
the original fifty-one lots was given one vote, and division of the lots did
not alter this distribution. They
further argue that division of a lot did not leave each owner with a
proportional vote that could be exercised independently, but that all owners
must sign in order for a lot's execution of an amendment to be counted. The parties have stipulated that if only
fifty-one votes existed, and they are counted as the defendants argue, there
was insufficient support for the amendment.
The circuit court held
in favor of the Committee. It concluded
that the covenant was ambiguous, but that the better interpretation was that
each parcel had one vote, regardless of subdividing. Interpretation of a restrictive covenant is a question of law we
review independently of the trial court.
Zinda v. Krause, 191 Wis.2d 154, 165, 528 N.W.2d 55, 59 (Ct. App. 1995). Whether a covenant is ambiguous is also a question of law. Id. The language in a restrictive covenant is ambiguous if it is
susceptible to more than one reasonable interpretation. Id. at 165-66, 528 N.W.2d at
59.
On the basis of the
stipulation and argument provided by the parties, we conclude this case can be
resolved on a narrow issue. The
defendants' argument is in two parts: (1) subdivision of a lot did not create
new votes, and (2) the separate owners of a subdivided lot must be in agreement
for the lot's vote to be valid.[4] Even if we were to accept the first
argument, we would reject the second.
The covenant is not ambiguous on this point. There is nothing that even arguably suggests that such an
agreement between owners is necessary.
In the absence of an express provision, it would be absurd to construe
the covenant as requiring such agreement from independent owners who may
otherwise exercise the entirety of their property rights without consulting
each other.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] The stipulation names only 28 lots which were divided, suggesting that at least one of the lots was subdivided into more than two parcels.
[3] We use the term "votes," as do the parties, even though amending the covenant did not involve an actual election process, but simply the gathering of signatures.
[4] The defendants do not emphasize this second argument, but it is necessary if they are to prevail because the stipulation provides that there are less than three-quarters of fifty-one votes, "if the owners of both parcels of a divided lot are both required to execute" a vote. The stipulation does not state what the tally would be if there were fifty-one votes and each owner of a divided lot could cast a partial vote independently. However, because of the wording of the stipulation and the defendants' argument, we assume the result is not favorable to the defendants.