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Real estate developers often want to ensure the type and quality of their developments. One commonly utilized tool to achieve this goal is a restrictive covenant recorded in the real estate records to control later development of the property. A recent Wisconsin Court of Appeals’ decision illustrates the importance of specificity when drafting restrictive covenants.

In Buehrens v. Schave, 2020 WI App. 75, 951 N.W.2d 640, a property was encumbered by a restrictive covenant limiting development to homes and garages. The restrictive covenant, however, included no definition of “garage,” nor did it include any size limitations on the size of permitted garages. When a property owner constructed a building with an electric garage door that was 36 feet wide, 80 feet long and 16 feet high, his neighbors were upset. After the owner refused to remove his garage, the neighbors sued. The neighbors argued that because of its size and style of construction, the structure was actually a “pole barn” and not a garage.

Like many jurisdictions, Wisconsin law favors the free and unrestricted use of real property. Wisconsin law, however, is stricter than many other states in that Wisconsin courts will not enforce a restrictive covenant if it is ambiguous. Consistent with this principle, the Buehrens court determined that removal of the structure was only allowed if the restrictive covenant both clearly and unambiguously precluded a building of the size and structure at issue in Buehrens. Because the term “garage” was not defined in the restrictive covenant, the court turned to common dictionary definitions. The definitions cited by the court only referred to a building used for storing a vehicle or vehicles. None of the definitions were limited by size or materials. Accordingly, the Buehrens court found that the restrictive covenant did not unambiguously prohibit the structure and allowed the property owner to keep his “garage.”

As mentioned above, some states, including Minnesota, are more expansive in their application of restrictive covenants and allow enforcement of ambiguous covenants. See State by Crow Wing Environmental Protective Association v. City of Breezy Point, 363 N.W.2d 778 (Minn. Ct. App. 1985); see also Wheeler v. Southport Seven Planned Unit Development, 2012 ND 201, 821 N.W.2d 746. Regardless of your location, the decision in Buehrens is a good reminder to include clear, unambiguous, and specific provisions and definitions in restrictive covenants. In the absence of such language, your development may be subjected to some unwelcome surprises.


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