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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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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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