Seasonal Docking Rights in Michigan Subdivisions: Understanding Property Use Restrictions
Homeowners associations often adopt deed restrictions that govern the way property can be used within their communities. These restrictions can influence what property owners can place on their land and whether they can construct, replace, or expand on these items. In addition to deed restrictions, local zoning ordinances can also work to restrict property use within homeowners associations. The property use restrictions provided within deed restrictions may give rise to disputes in which homeowners associations feel that their deed restrictions are being violated by a particular property use, while the property owners disagree. These disputes are often challenging for homeowners associations to navigate and require a careful analysis of what property uses are contemplated within the deed restrictions. In Hickory Island Company v Coleman, unpublished per curium opinion of the Court of Appeals, issued March 2, 2023 (Docket No. 360848), 2023 WL 2341969, the Michigan Court of Appeals considered whether the property owners, by storing their boat overnight on their boat hoist, violated the restrictive covenants in a waterfront subdivision, and whether the work done on the boat hoist violated the deed restrictions. The Michigan Court of Appeals also considered whether the property owners had violated the applicable zoning ordinances as well. As discussed below, this case highlights important considerations for homeowners associations on deed restrictions and local zoning ordinances that relate to property use restrictions within their communities.
Background
The Hickory Island Company (“HICO”) governed the affairs of Hickory Island in the Township of Grosse Ile. As part of HICO’s governance, it regulated the manner in which residents could use their property through their deed restrictions. Hickory Island was subject to a deed restriction that prohibited the installation of boat hoists. However, an exception did exist within the deed restrictions for structures constructed with approval, and for their maintenance and repair.
In 1987, the defendant homeowners applied for and received an exception from HICO to construct a boat hoist to replace one that had been damaged in a storm. The defendant homeowners contended that they stored their boat on the hoist day and night from approximately Memorial Day to Labor Day every year since 1987. However, in 2019, the motor controlling the boat hoist was destroyed by rising water levels.
In June of 2020, the defendant homeowners had the motor on their boat hoist inspected, and based on the rising water levels, they were told it would be best to relocate the motor above the dock to prevent future water damage. The defendant homeowners did not initially obtain a work permit from the Township of Grosse Ile, nor approval from HICO to have the motor for the hoist relocated as recommended. HICO sent multiple cease and desist notices to the defendant homeowners, stating that the work violated the deed restrictions. The defendant homeowners disagreed that the work violated the deed restrictions, as they were only repairing the hoist, which was expressly permitted under the restrictions. Although no approval was obtained from HICO, the defendant homeowners were issued a building permit for the work on the hoist by the Township. After the work on the hoist was completed, HICO received complaints from the defendant homeowners’ neighbors that the hoist had been modified and expanded. As a result, HICO filed a lawsuit against the defendant homeowners, alleging that they had violated the deed restrictions by failing to request written approval from HICO’s Board of Directors prior to modifying and expanding the boat hoist and that they had been docking their boat on the hoist overnight in violation of the restrictions. HICO also alleged that the alterations made to the boat hoist violated the Township’s zoning ordinance and, as such, constituted a nuisance per se.
Both parties moved for summary disposition (a legal action where a court resolves a case without a full trial), arguing that they were entitled to judgment as a matter of law. The trial court found that the deed restrictions only prohibited overnight “docking” and did not prohibit the overnight use of a boat hoist, and that the work done to the hoist was merely a repair and not a modification or improvement that would have required HICO’s approval. The trial court further found that because the defendant homeowners had obtained a special exception for the boat hoist from the Township, there was no violation of the local zoning ordinance. Based on these findings, the trial court granted summary disposition in favor of the defendant homeowners. HICO appealed.
Deed Restrictions Will be Enforced as Written
On appeal, HICO contended that the trial court erred in finding that the hoisting of the boat overnight was not a violation of the deed restrictions. HICO claimed that the prohibition for no overnight docking extended to a boat being stored overnight on a hoist. HICO attempted to support its contention by stating that since the term “dock” means “to haul or guide into or alongside a dock,” the fact that the defendant homeowners’ boat was stored in a hoist alongside their dock meant that it was docked within the meaning of the restriction. The Court of Appeals disagreed with HICO, holding that the mere fact that the boat hoist was alongside the dock did not make it docked, and even if it did, the restrictions only prohibited the docking of boats, not the docking of boat hoists. Furthermore, the Court of Appeals found that when a boat is placed on a hoist, it is lifted from the water and not brought alongside a dock. Ultimately, the Court of Appeals held that the language of the restriction indicated that overnight docking of a boat was prohibited, but there was nothing to support the claim that the prohibition also extended to boats being hoisted overnight. Since the restriction did not include any mention of boat hoists, and docking could not be read or interpreted in any reasonable manner to include the hoisting of a boat, the defendant homeowners’ overnight use of their boat hoist was not in violation of HICO’s deed restrictions.
The Boat Hoist Was Not a Violation of the Local Zoning Ordinance and Not a Nuisance Per Se
HICO additionally argued that the boat hoist violated the Township’s ordinances, and based on this violation, it was a nuisance per se. Specifically, HICO argued that the boat hoist was a nonconforming accessory structure under the local zoning ordinances. The Court of Appeals found that because the defendant homeowners had received a special building permit for the boat hoist, the structure could not be deemed a nonconforming use and therefore, was not a nuisance per se. The Court of Appeals held that under the Township’s ordinances, a process existed to receive approval for structures not normally allowed within certain zones, and because the defendant homeowners obtained this approval, the trial court did not err in summarily dismissing the nuisance per se claim.
The Court of Appeals Rules That a Question of Fact Exists
The Court of Appeals held that there was a factual dispute regarding whether the width of the boat hoist had been expanded during the repair work. There were factual inconsistencies between the drawings and measurements conducted by HICO on the hoist and the affidavit evidence provided by the defendant homeowners, which stated that the current measurements of the hoist were the same as those in 1987 when the hoist was originally installed. Because there was a factual dispute as to whether the boat hoist had been expanded in violation of the deed restrictions, the trial court had erred in granting summary disposition on this issue.
Key Considerations for Homeowners Associations Related to Property Use Restrictions and Local Zoning Ordinances
The Court of Appeals’ decision in Hickory Island Company v Coleman, unpublished per curium opinion of the Court of Appeals, issued March 2, 2023 (Docket No. 360848), 2023 WL 2341969 highlights the importance of the language used within community associations’ deed restrictions and restrictive covenants and how courts will apply this language. The case also serves as an important reminder that although certain property use restrictions may be enforced under local zoning ordinances, this will not guarantee that the use is a violation under community associations’ deed restrictions if it is not expressly restricted.
Deed Restrictions Will Not Be Applied in a Manner That Expands Their Reach.
The language used within your community’s deed restrictions will be enforced as written. If disputes arise, the terms will not be applied in a manner that expands their reach or includes items not intended within their general definition or understanding. Having an experienced community association attorney carefully review and draft deed restrictions is important to ensure that the use restrictions within your documents truly capture the property uses you intend to prohibit.
Zoning Ordinances May Impact How Property Can Be Used Within Your Communities.
Local zoning ordinances are another way in which property use restrictions can be imposed within your communities. However, as this case demonstrates, relying on zoning ordinances to establish that a particular property use is a violation will not always be successful, especially if the property use is not clearly prohibited within your condominium or homeowners association’s deed restrictions. To ensure that certain property uses are restricted within your communities, it is best practice to include the restricted uses specifically within your deed restrictions and restrictive covenants.
Need Help Understanding What Property Use Your Deed Restrictions and Local Zoning Ordinances May Permit?
If you need help understanding how the property owners within your Michigan homeowners association may use their properties according to your deed restrictions and local zoning ordinances, contact Hirzel Law. Our experienced community association lawyers can assist you in interpreting and understanding what is permitted under the property use restrictions within your communities and any applicable zoning ordinances. Our firm is here to help!
Erika DiLoreto obtained her Bachelor of Arts degree with an honors specialization in Criminology with Distinction from the University of Western Ontario in 2019. She then went on to obtain her Master of Arts degree in Sociology from Carleton University in 2022. She continued her academic journey at the University of Detroit Mercy School of Law and the University of Windsor School of Law, where she pursued her Dual Juris Doctorate (J.D) degree and graduated Cum Laude in 2024. During her time in law school, Ms. DiLoreto was actively engaged in various roles and responsibilities. She volunteered with community-based clinics on both sides of the border, assisting individuals with various legal matters. Ms. DiLoreto also served as a judicial extern for the Honorable Matthew F. Leitman in the United States District Court for the Eastern District of Michigan. Following law school, Ms. DiLoreto completed her articles at Brown Beattie O’Donovan in London, Ontario, Canada, where she handled litigation matters involving construction, employment, and real estate disputes, as well as landlord and tenant matters. Following the completion of her articles, Ms. DiLoreto was called to the bar in Ontario and is now a dually licensed attorney in both the Province of Ontario and the State of Michigan. Ms. DiLoreto is dedicated to assisting individuals with legal matters and committed to working hard for her clients. She may be reached at (248) 478-1800 or ediloreto@hirzellaw.com
