Uebelacker v. Begler, decided August 18, 2010. Although not involving a municipality, this unpublished land use case demonstrates the need for careful attention to detail when amending covenants controlling land use. Uebelacher and Begler are neighboring property owners in the Upper Oconomowoc Lake Association, and as such are subject to a 1961 agreement concerning the building of boathouses. In 2003, a majority of the property owners voted to amend the agreement and require all boathouses be attached to the residence. Uebelacker built a detached boathouse, and Begler sued.
This case hinged on the proper procedure required for amending the 1961 agreement, which stated that amendments could only be made if “an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.” Although a majority of the owners apparently approved of the amendment, only three members of the Architectural Control Committee signed the recorded document. Based on the undisputed fact that a majority of the members had not signed the recorded amendment, the circuit court held the amendment invalid and thus unenforceable. The appeals court upheld the circuit court decision, noting: “The simple answer is that wanting to amend the 1961 agreement and actually doing so are two different things.”
The important note here is that it is important to follow your own rules – this is an area where municipalities are often challenged – a failure to follow the procedures they have enacted.