Michigan Court Rules that Livestock, Unauthorized Fences, and Off-Road Vehicles Violated HOA’s Restrictive Covenants
Disputes over whether exotic animals, such as chickens, can constitute pets under restrictive covenants are becoming increasingly common. In Nemeth v DiGirolamo, unpublished opinion of the Court of Appeals, issued March 12, 2025 (Docket No. 366595), 2025 WL 796149, the Michigan Court of Appeals considered whether four cows and a ram constituted “pets” under the deed restrictions. The case also examined whether using off-road vehicles to feed and water those animals violated the covenants and whether the owners unlawfully built a fence and shelter without approval from the homeowners association. The Michigan Court of Appeals ruled that the homeowners violated the governing documents, finding that cows and rams were not household pets, that vehicles were prohibited from driving off designated roads, and that HOA approval was required for fences and shelters. As discussed below, this case serves as a critical reminder for homeowners associations that clear and consistent enforcement of restrictive covenants is essential to any well-run community association.
Facts
Plaintiffs and defendants are owners in a five-lot neighborhood governed by a restrictive covenant known as the “Ski Club Agreement.” The five lots surround a lake for water skiing. Plaintiffs own two lots, and defendants own one lot in the subdivision. Seeking to improve their property’s soil, defendants signed a pasture lease with Beth Wojciechowski, who brought four cows and a ram to graze and distribute manure. Defendants constructed a fence and shelter for the animals without approval from the homeowners association. During the summer of 2021, Wojciechowski drove her vehicles daily onto defendants’ pasture to provide food and water for the animals. Plaintiffs filed a complaint seeking injunctive relief to prohibit the animals, shelter, and off-driveway vehicle use, arguing these activities violated the Ski Club Agreement. Defendants denied any violation and argued the HOA waived its right to enforce the agreement due to past uncontested violations.
Cows and Rams were Not Domestic Pets under the Restrictive Covenants
Paragraph 7 of the Restrictive Covenants states:
Pets: No person shall have, keep or maintain on any parcel without approval of the Directors of the Association, any exotic animals except that a domestic cat, dog, bird or other domestic animal may be maintained or kept on any parcel at any time at the discretion of the owner. Parcels 4 and 5 may have horses for use by the lot owners, but boarding, kenneling, or like activities and [sic] prohibited, Lots 1, 2 and 3 shall not have horses.
In interpreting the restrictive covenants, the Court focused on the meaning of the terms “domestic” and “exotic.” The Court held farm animal animals are not generally considered domestic pets. Instead, the term “pets” typically refers to animals like cats, dogs, and birds, which were the animals specifically listed in Restriction 7 as examples of domestic animals. The Court also held that animals such as horses were “exotic” and that only specific lots could have horses. Accordingly, the Court of Appeals upheld the trial court’s ruling that cows and rams were not allowed as domestic pets under the restrictive covenants.
HOA Approval was required to construct a Fence and Shelter for the Animals
Paragraph 8 of the Restrictive Covenants states:
Fences shall be of uniform design; and the locations, materials, style, color, and design shall be first approved by the declarant or the Association…decorative fence or fences erected to contain animals … are excepted from this prohibition, except that all such fences are subject to approval by the Association.
Paragraph 13 of the Restrictive Covenants states:
No building, fence, wall or other structure shall be commenced, erected, or maintained upon the property nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing by the Association. The Association shall approve or disapprove the harmony of external design and location in relation to the surrounding structures and topography. In the event the Association fails to approve or disapprove such design and location within 30 days after said plans and specifications have been presented to it, approval will not be required, and this Article shall be deemed to have been fully satisfied.
It was undisputed that the defendants did not seek or obtain approval from the homeowners association to install a fence or animal shelter as required by the Restrictive Covenants. The Court held that approval to build a fence or other structure only becomes unnecessary after plans have been presented and the homeowners association and the association fails to approve or disapprove the plans within 30 days. As such, the Court held that the defendants violated the restrictive covenants by commencing construction without submitting plans to the homeowners association.
The Court also rejected the defendants’ waiver argument. Specifically, the Court stated as follows:
With respect to waiver of restrictive covenants, “[t]here is no waiver where the character of the neighborhood intended and fixed by the restrictions remains unchanged.” Rofe v Robinson (On Second Remand), 126 Mich App 151, 155; 336 NW2d 778 (1983). In other words, “if a plaintiff has not challenged previous violations of a deed restriction, the restriction does not thereby become void and unenforceable when a violation of a more serious and damaging degree occurs.” Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham, 479 Mich 206, 219; 737 NW2d 670 (2007).
When determining whether prior acquiescence to a violation of a deed restriction prevents a plaintiff from contesting the current violation, we compare the character of the prior violation and the present violation. Only if the present violation constitutes a “more serious” violation of the deed restriction may a plaintiff contest the violation despite the plaintiff’s acquiescence to prior violations of a less serious character. In general, a “more serious” violation occurs when a particular use of property constitutes a more substantial departure from what is contemplated or allowable under a deed when compared to a previous violation.
In applying the above standard, the Court held that the fact that another owner had a shed was insufficient to establish waiver of the restrictive covenants. The Court stated that there was a difference between a storage shed for tools or recreational equipment and a shelter for live animals. The shelter for live animals presented other disturbances not presented by the storage shed, such as animal smells and noises. The Court held that any alleged waiver from permitting a shed did not establish waiver of a more serious violation, such as an animal shelter.
The Deed Restrictions Required Vehicles to be in Garages or Driveways
Paragraph 2 of the Restrictive Covenants states:
Vehicle Parking: No vehicles … shall be permitted upon, used, parked, or kept at any time on the properties herein described, except in the attached garages or, for vehicles in regular use, on the concrete driveways.
The Court stated that while the title of this deed restriction admittedly is “Vehicle Parking,” the restriction expressly prohibits the “use” of vehicles outside garages or off concrete driveways. Since it was undisputed that Wojciechowski drove vehicles on defendants’ grass every day during summer of 2021, the Court determined that this violated the prohibition against using vehicles off the concrete driveway.
The defendants argued that the restrictive covenants related to vehicles were waived. The defendants argued that because all the lot owners have boats, and to drop their boats into the lake all the lot owners are required to have their boats towed by a truck driven off their driveways and up to a boat launch. The Court held that the defendants signed an affidavit that Wojciechowski would typically visit the property daily. However, there was nothing in the record to suggest that other owners tow their respective boats to the lake daily. The Court also noted that other covenants expressly contemplate that owners will place boats in the lake, so the towing of boats is permitted. Finally, the Court said that even if towing boats into the lake was not permitted by the restrictive covenant, occasionally towing the boats was insufficient to establish waiver that would permit daily off-driveway use of trucks daily.
Conclusion
The Michigan Court of Appeals’ decision in Nemeth v DiGirolamo, unpublished opinion of the Court of Appeals, issued March 12, 2025 (Docket No. 366595), 2025 WL 796149 serves as a crucial reminder for homeowners associations regarding the importance of clear, consistent, and proactive enforcement of restrictive covenants. This case highlights several essential lessons for community associations:
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- Clearly Define Restrictive Covenant Terms. Governing documents should expressly list prohibited animals to prevent disputes over whether livestock, chickens, or other exotic animals qualify as “pets.” Restrictive covenants should be amended to prohibit specific animals to avoid disputes over what types of animals are “pets.”
- Strictly Enforce Architectural Approval Requirements. Homeowners must follow approval processes for modifications such as fences, sheds, or animal shelters. Community associations should consistently apply architectural controls to maintain community standards, and it is better to ask for permission than forgiveness from the HOA.
- Waiver of Restrictions is Difficult to Prove. A community association’s failure to enforce a minor violation does not mean it loses the ability to enforce more serious violations later. Community associations should ensure consistent enforcement to prevent challenges from homeowners claiming selective enforcement or waiver.
- Violating Restrictive Covenants can be Costly. The defendants were ordered to pay $56,370 in attorney’s fees, as the governing documents allowed the prevailing party to recover attorney’s fees for establishing a covenant violation. This case serves as a stark warning for homeowners that ignoring restrictive covenants can have significant financial consequences.
Community associations must diligently enforce restrictive covenants to protect property values and maintain neighborhood standards. For homeowners associations seeking guidance on enforcing deed restrictions, amending governing documents, or navigating legal disputes, consulting with an experienced community association attorney is essential. If your HOA needs assistance, our firm is here to help!
Kevin Hirzel is the Managing Member of Hirzel Law, PLC, and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association law, and real estate law. Mr. Hirzel is a fellow in the Community Associations Institute’s College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel has been recognized as a Michigan Super Lawyer in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. Hirzel Law, PLC represents community associations, condominium associations, cooperatives, and homeowners associations, in Michigan and Illinois. He may be reached at (248) 478-1800 or kevin@hirzellaw.com.
