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COA: Rentals not restricted by covenants

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In a case of first impression, the Indiana Court of Appeals determined today the rental of cabins in a subdivision was allowed under its restrictive covenants because the rental property was for "residential use."

At issue in William Applegate, et al. v. Earl F. Colucci, et al., No. 62A05-0802-CV-112, was whether Earl Colucci violated three of the subdivision's restrictive covenants when he built cabins on his lots and rented them through a business he maintained on one of the lots. Applegate and other landowners filed a complaint against Colucci and Vince Hubert - who used Colucci's company to rent his cabin - seeking monetary damages and to enjoin them from any activity that violates the covenants.

The trial court enjoined Colucci for violating paragraph 2 of the covenant, which says no lot should be sub-divided any smaller than the original size, because he had placed multiple cabins on one lot. The trial court found in favor of Colucci in regards to the "interpretation" of paragraph 4, which states no commercial business shall be carried on upon any parcel and "nothing herein contained shall prevent the leasing or renting of property or structures for residential use."

The landowners argued the renting of cabins was a commercial business and violates paragraph 4. This exact issue is one of first impression, so the appellate court turned to past cases dealing with what constitutes residential use as guidance. It used Stewart v. Jackson, 635 N.E.2d 186 (Ind. Ct. App. 1994), and Lewis-Levett v. Day, 875 N.E.2d 293 (Ind. Ct. App. 2007) - both of which dealt with day cares in neighborhoods with restrictive covenants - to determine the short-term rental of Colucci's cabins constitute a residential use.

Also, the covenants don't expressly prohibit the short-term rental of the lots in the neighborhood and appear to allow any type of rental as long as it is for residential use, wrote Judge James Kirsch.

"The people who rent Colucci's cabins use the structures for eating, sleeping, and other typical activities associated with a residence or dwelling place," he wrote. "Although we recognize that the renters' occupation of the cabins is only on a temporary basis and the definition of residential seems to contemplate a more permanent presence, we find that this definition is at odds with the covenant language explicitly allowing the rental or lease of property."

Whether or not Colucci's maintenance of a real estate office to support the cabin rentals on one of the lots violates paragraphs 1 and 4 is a material question of fact. The appellate court reversed summary judgment in favor of the landowners on this issue and remands for further proceedings.

The trial court also erred in entering the injunction against Colucci based on paragraph 2 because although Colucci had built separate structures on the same lot, there was no evidence he was planning on dividing the lots into separate tracts of land to sell, wrote the judge.

The appellate court also denied requests from both parties for attorney fees at this time.

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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