This browser is not actively supported anymore. For the best passle experience, we strongly recommend you upgrade your browser.
| 1 minute read

Court of Appeals Allows Large Structure to Stay in Residential Neighborhood After Neighbors Assert it Violated Restrictive Covenant.

In a recent Wisconsin Court of Appeals decision, the Court of Appeals held, “Because purported restrictions in covenants must be in clear, unambiguous and peremptory terms in order to restrict the free and unencumbered use of property, we affirm the circuit court’s rejection of the neighboring property owners’ challenge to the garage. The language and purpose of the covenant and Wisconsin’s public policy disfavoring constraints on the free use of property guide our decision.”

Michael and Rochelle Schaves constructed a building that included an electric garage door measuring thirty-six feet by eighty feet and reaching sixteen feet high. The Schaves’ neighbors demanded that the building be removed because it violated the restrictive covenant against the construction of buildings other than “garages.” The Schaves moved for summary judgment, asserting that covenants which restrict the free use of property must be clear and unambiguous. The Schaves argued that they intended to use the building as a garage.

The circuit court granted the Schaves’ motion because, it said, the term “garage” was not qualified. Thus, the garage was permissible.

On appeal, the Court of Appeals affirmed the decision of the circuit court. The Court of Appeals examined the dictionary meaning of the term “garage” and determined that “[the] only requirement is that the building be used to store vehicles.” Because the Schaves planned to use the structure to store vehicles, it qualified as a “garage” and could stand.

This case is an important reminder to real estate attorneys that specificity is important when drafting restrictive covenants.


real estate