STATE OF MICHIGAN IN THE 3rd JUDICIAL CIRCUIT COURT FOR THE COUNTY OF WAYNE. Hon. Kathleen I. McDonald

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1 STATE OF MICHIGAN IN THE 3rd JUDICIAL CIRCUIT COURT FOR THE COUNTY OF WAYNE Stanley Puchala and Kathleen Puchala, husband and wife, Plaintiffs, Case No CH Hon. Kathleen I. McDonald v. Huron Meadows Subdivision Association, Defendant. Oakley and Robinson, PC Andrew D. Campbell (P73926) Steven P. Robinson (P45753) Attorney for Defendant Attorney for Plaintiffs 1651 S. Eton St Goddard Rd. Birmingham, MI Romulus, MI (248) (734) ANSWER 1. Admit. 2. Admit 3. Admit. 4. No response necessary. 5. Defendant is without sufficient information to respond to this allegation and leaves Plaintiffs to their proofs. 6. Admit. 7. Admit that the rear boundary line of Plaintiffs property adjoins a parcel designated as a common area which, by its original dedication, is owned by all lot owners in the 1

2 Subdivision Association, and is set aside for the use and enjoyment of all lot owners in the Subdivision. 8. Denied as untrue and for the reasons set forth in the affirmative defenses. 9. Denied as untrue and for the reasons set forth in the affirmative defenses. 10. Denied as untrue, as the erroneous legal conclusion of Plaintiffs, and for the reasons set forth in the affirmative defenses. 11. No response necessary. 12. Denied as untrue, as the erroneous legal conclusions of Plaintiffs, and for the reasons set forth in the affirmative defenses. WHEREFORE, Defendant requests that the case be dismissed and that reasonable costs and attorney fees be awarded to Defendant. AFFIRMATIVE DEFENSES Defendant incorporates its answer by reference and further states by way of affirmative defense: 1. Plaintiff has failed to state a claim upon which relief may be granted. 2. There is no genuine issue as to any material fact such that Defendant is entitled to judgment as a matter of law. 3. Plaintiffs lawsuit is not well grounded in fact nor is it warranted by existing law. It is brought for the sole purpose of harassing Defendant and coercing it into selling the property in question to Plaintiffs by creating needless litigation time and expense. 4. Plaintiffs have not used, maintained, or occupied the property in question for the 15-year statutory period as evidenced by: 1) a Warranty Deed conveying the property to Plaintiffs 2

3 on December 11, 1998, a copy of which is attached as Exhibit A; and 2) Defendant s counsel s letter of October 30, 2013 giving Plaintiffs formal notice of their violations of the Declaration of Restrictions by their activities in the common area, a copy of which is attached as Exhibit B. 5. Plaintiffs interest in the property in question is not hostile or adverse to Defendant s interest as evidenced by the fact that Plaintiffs are themselves members of Huron Meadows Subdivision Association pursuant to Article IV, Section 1 of the Declaration of Restrictions (Exhibit B). Pursuant to the Declaration of Restrictions, the common area that Plaintiffs claim an adverse interest to has been dedicated to and is currently held by the Subdivision Association, of which Plaintiffs are members. 6. Plaintiffs use of the property in question is not hostile or adverse to Defendant s interest therein as evidenced by the Declaration of Restrictions which grants to every property owner in the subdivision a permissive use of the common areas. A copy of the Declaration of Restrictions is attached as Exhibit C. 7. Plaintiffs use of the property in question is not hostile or adverse to Defendant s interest therein as evidenced by the fact that Plaintiffs sought permission of Defendant to erect a fence on the property in question. 8. Plaintiffs use of the property in question is not hostile or adverse to Defendant s interest therein as evidenced by the fact that Plaintiffs made an offer to purchase the property in question from Defendant. A copy of the offer is attached as Exhibit D. 9. Plaintiffs use of the property in question is not exclusive as evidenced by the fact that all property owners in the subdivision: 1) have a permissive use of the common areas and do use the common areas for passive recreation as allowed by the Declaration of 3

4 Restrictions; and 2) all property owners in the subdivision pay association fees for the upkeep and maintenance of the common areas. 10. Plaintiffs use of the property in question is not open, notorious or visible as evidenced by the fact that the property in question appears no different from surrounding areas in its appearance or upkeep and Plaintiffs have erected no structures whatsoever in the area in question. WHEREFORE, Defendant requests that the case be dismissed and that costs and attorney fees be awarded to Defendant. COUNTERCLAIM Defendant incorporates its answer and affirmative defenses by reference and further alleges by way of counterclaim: Count I - Breach of Setback Requirements of Declaration of Restrictions 1. Defendant, Huron Meadows Subdivision Association, was established by the Declaration of Restrictions dated March 31, 1998 and recorded at Liber 29845, Page 7187, Wayne County Records. (Exhibit C). 2. Plaintiffs, as purchasers of a lot within Huron Meadows Subdivision, knew or should have known of the existence of the Declaration of Restrictions and that their lot was and is expressly subject to the restrictions contained therein, which run with the land, which are incorporated by reference in all deeds of conveyance and contracts for purchase, and which bind all grantees of the lots in the Subdivision. (Exhibit C, page 1). 3. Pursuant to the Declaration of Restrictions, Defendant is bound to enforce its provisions on behalf of all lot owners in the Huron Meadows Subdivision. 4

5 4. Pursuant to Article VI, Section 3 of the Declaration of Restrictions, [n]o building shall be erected or maintained on any lot in The Subdivision which has... a rear yard setback of less than thirty-five (35 ) feet from the rear lot line Plaintiffs have erected a shed/gazebo which is situated approximately 2 feet from their rear lot line. 6. Plaintiffs shed/gazebo is in violation of the setback requirements contained in Article VI, Section 3, of the Declaration of Restrictions. 7. Defendant s counsel sent notice to Plaintiffs attorney of the violation on October 30, 2013, and advised them that the Declaration of Restrictions required them to appear before the Board and defend themselves. 8. Plaintiffs have failed or refused to cure their violation or to appear before the Board and defend themselves as required by the Declaration of Restrictions. 9. Pursuant to Article X of the Declaration of Restrictions, Defendant has the right to enforce the restrictions by any proceeding at law. Count II Violation of the Restrictions on the Use of Common Areas 10. Defendant incorporates its answer, affirmative defenses and paragraphs 1-9 of its counterclaim by reference. 11. Pursuant to the Declaration of Restrictions, Article VIII Restrictions on the Use of Common Area, the following activities are prohibited in the Common Areas of the subdivision: a. Section 2 Prohibited Structures. No wall, platform, building or structure may be constructed in the Common Area without the prior written consent and approval of Declarant and all governmental agencies having jurisdiction. 5

6 b. Section 6 Use of Common Area. The Common Area shall be used only for passive recreation, or such additional uses as may be established if approved in writing by not less than fifty-one (51%) percent of the Members and thereafter ratified by the City Council of the City of Rockwood Upon information and belief, and by their own admission in the Complaint, Plaintiffs are currently conducting, or intend to conduct, prohibited activities in the Common Area behind their home to further their claims for adverse possession and easement by prescription. 13. Defendant s counsel sent notice to Plaintiffs attorney of the violation on October 30, 2013, and advised them that the Declaration of Restrictions required them to appear before the Board and defend themselves. 14. Plaintiffs have failed or refused to cure their violation or to appear before the Board and defend themselves as required by the Declaration of Restrictions. 15. Pursuant to Article X of the Declaration of Restrictions, Defendant has the right to enforce the restrictions by any proceeding at law. REQUEST FOR RELIEF Defendant requests that this Court enter an order: A. Dismissing Plaintiffs Complaint in its entirety; B. Requiring Plaintiffs to remove their gazebo/shed and bring their lot into compliance with the setback requirements of the Declaration of Restrictions; C. Permanently enjoining Plaintiffs from conducting any prohibited activities within the Common Areas of the Subdivision; 6

7 D. Awarding Defendant its reasonable costs and attorney s fees; and E. Awarding Defendant other relief as is just and equitable. Respectfully submitted, Dated: /s/ Andrew D. Campbell (P73926) Attorney for Defendant 7