A judge in Michigan recently sued her homeowner’s association seeking a declaratory judgment (a judgment from a court that determines the rights of parties without ordering anything be done or awarding damages) that the more than six foot tall shed she installed in her yard does not violate the association’s covenants.   The homeowner’s association claims the shed violates a deed restriction in the covenants and the association has threatened to sue the judge if she doesn’t remove or downsize it.   

According to the article, the judge reviewed the association’s covenant restrictions prior to putting up the shed and “as a lawyer and judge determined she had the legal right to do so”.  The Association asserts, however, that the shed is considered a “temporary structure” which, under the covenants, is not permitted.  The particular provision states: “‘Temporary Structures.’ Structures of a temporary character are expressly prohibited within these subdivisions and no trailer, tent, garage, basement shed or any other out buildings shall be used on any lot at any time as a residence.”  The judge argues that the shed is not used as a residence and is only being used to store a lawn mower and other tools, and, therefore, the shed is not a temporary structure as defined in the covenants.

The association asserts that even if the shed is not considered a residence under the “temporary structure” restriction, the shed violates another provision of the covenants which provides that “no detached garages, boat houses, or any other building other than the single family dwelling is permitted on any lot.”  The judge’s position is that the shed is not a “building” and, using her lawyerly skills, has argued that the more specific provision relating to sheds as a "temporary structure" applies–and under that section, the shed is not used as a residence and therefore, there is no violation of any covenant.  Colorado courts have ruled that when the language of a covenant is unclear, the court will resolve all doubts against the restriction and in favor of free and unrestricted use of property. 

The judge also argues that it took a year for the association to initiate action, creating a statute of limitations problem.  The association claims, however, that association officials did not notice the shed until this summer.   If you’re scratching your head thinking, why doesn’t the association just amend the covenants to clear up any ambiguity, according to the article, the association attempted to clarify the issue in 2006 by amending the “temporary structures” provision, but the amendment failed because fewer than 51 percent of the residents approved it, and the association legally cannot amend its language until 2016.

It’s hard to say how the court will rule, but one thing is clear, ensuring your covenants are properly enforced can keep your community on the right side of the law!