Owners’ Acquiescence in Association Violations of Restrictive Covenants Constituted Waiver of Right to Compel Enforcement

This case involved a dispute between homeowners (“Owners”) and their homeowners’ association (“Association”) over claims by Owners that Association violated Association’s deed restrictions and bylaws by planting a new tree and installing a new swing set in a common area park between Owners’ property and Lake Huron. The subject restriction prohibited the erection or maintenance of a “building, tent, or other structure of any kind or nature“(with the exception of a Community flagpole), on the portion of land lying between the owners’ lots and the waters of Lake Huron that obstruct lot owners’ view of the lake.

After Association had replaced a tree that had died and a prior swing set that had existed in the area in question for many years without objection by Owners, Owners filed suit against Association for declaratory and injunctive relief. The lawsuit intended to prohibit Association from planting trees or installing any structures other than a flagpole in the park area, and sought an order requiring Association to remove the newly planted tree and the new swing set. Owners contended that the new swing set and tree obstructed their view of the lake.

The trial court found that the new swing set qualified as a “structure” that had been installed on the park property, but the alleged violation had been waived by Owners because prior swing sets and a “playscape type structure” had previously existed in the park for many years without objection by Owners. The court found: