Oct. 13, 2020 – When homeowners constructed a 36x80x16-foot building on their Fond du Lac property, the neighbors complained that it violated the subdivision’s restrictions on structures other than "garages." Recently, a state appeals court ruled for the homeowners.

In Buehrens v. Schave, 2019AP1649 (Oct. 7, 2020), a three-judge panel for the District II Court of Appeals ruled that the structure must stand because the subdivision’s restrictive covenant on “garages” was not clear enough to require a different result.

“Following well-established Wisconsin law, we must favor the free and unencumbered use of property when purported restrictions in covenants are not in clear, unambiguous, and peremptory terms,” wrote Chief Appeals Court Judge Lisa Neubauer.

The subdivision’s restrictive covenant says: “In addition to the residence, the only other building to be allowed on said premises shall be a garage.” But “garage” is not defined.

Michael and Rochelle Schaves continued construction on the structure despite complaints from neighbors who said it was too big to constitute a garage. The neighbors sought enforcement of the covenant in circuit court and an order of removal.

The neighbors offered exhibits and affidavits, arguing the building was a ”pole barn” or “pole shed,” but the circuit court rejected that argument on summary judgment.

The appeals court affirmed. Because the term “garage” was not defined, the appeals court looked to the common dictionary definition of garage, generally defined as “a building or compartment of a building used for housing an automotive vehicle.”

“The common and ordinary meaning of the term ‘garage’ is not limited to a certain size or material,” Chief Judge Neubauer wrote. “The only requirement is that the building be used to store vehicles. The Neighbors offer no competing definition.”

The panel noted that the restrictive covenant for garages contemplates the storage of larger vehicles, such as farm equipment, which requires a larger structure. The panel also noted that the restrictive covenant document sets specific dimensions for homes.

“This restrictive language, compared to the absence of any size limitations for the garage, speaks volumes as it demonstrates that the drafters were capable of adding limiting language,” Chief Judge Neubauer wrote. “If the purpose of the covenant were to limit the size of the garage, it could and should have been expressly stated.”

The panel also rejected the neighbors’ claim that an adverse decision could allow the structure to be used for commercial purposes. The restrictive covenant, the panel noted, precludes residents for using property for livestock or commercial or business purposes.