Pietrowski v. Dufrane

2001 WI App 175, 247 Wis. 2d 232, 634 N.W.2d 109



Generally, an appellate court's review of a circuit court's grant of summary judgment is de novo. However, when the grant of summary judgment is based on an equitable right, the appellate court applies a two-tiered standard of review. The appellate court reviews the legal issues de novo. However, the circuit court's decision to grant equitable relief is discretionary and, therefore, will not be overturned absent an erroneous exercise of discretion.


The Dufranes procured a building permit for construction on their property and began constructing a detached two-and-one-half car garage immediately adjacent to their neighbor Pietrowski's property. During the construction, Pietrowski informed the Dufranes multiple times that the garage violated the restrictive covenants contained in the Declaration of Restrictions executed in 1940 by the subdivision's original developer. The restrictions at issue prevent property owners in the subdivision from erecting more than one family dwelling and one private garage on their land. Thus, the construction of an additional garage violated the restrictive covenants. Once the construction was completed, Pietrowski initiated a cause of action seeking to enforce her equitable rights in the restrictive covenant and requesting that the circuit court order that the garage be razed. In their defense, the Dufranes alleged that other property owners in the subdivision, including Pietrowski, had constructed buildings on their property in addition to one single family residence and one garage. The circuit court granted summary judgment in favor of Pietrowski. On appeal, the Dufranes argued that the trial court erred in granting the neighbor's motion for summary judgment because: (1) the neighbor waived the right to enforce the restrictive covenant as she did not enforce the restrictive covenant against the other homes in the subdivision with sheds in violation of the covenant; (2) the neighbor would be allowed to maintain a violation of the restrictions on her property while enforcing the restrictions on others; and (3) violations of the restrictive covenant by others constituted an abandonment of the restrictive covenant.


Does a landowner's minor violation of a restrictive covenant amount to unclean hands, barring an action against an abutter for a major violation?




The appellate court held that the trial court properly exercised its discretion because: (1) she did not waive the right to enforce the restrictive covenant against the homeowners as the other violations were slight whereas the homeowner's violation was material; (2) the neighbor's breach was not so great as to result in her having unclean hands; and (3) the sheds constructed by the neighbor and the other homes in the subdivision did not change the character of the subdivision.

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