This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Dorothy M. Krekelberg, et al.,





Lawrence F. Okrend, et al.,



Filed December 12, 2006


Kalitowski, Judge


Hennepin County District Court

File No. 27CV0512970


Matthew A. Anderson, Andrew J. Hippert, Babcock Neilson Mannella Klint, P.L.L.P., 118 East Main Street, Anoka, MN 55303 (for respondents)


Frederick R. Kopplin, Kopplin Law Office, P.A., 5038 34th Avenue South, Minneapolis, MN 55417 (for appellants)


            Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this dispute over the construction of a shed in violation of a neighborhood restrictive covenant, the district court granted summary judgment and an injunction ordering appellants Lawrence F. Okrend and Janice M. Watkins to remove the disputed shed. Appellants argue that the district court erred by (1) finding that the character of the neighborhood had not changed; (2) granting equitable relief to respondents even though they had unclean hands; (3) finding that the architectural committee was validly constituted; and (4) finding that appropriate procedural protections were in place to protect appellants from arbitrary enforcement.  We affirm.



Appellants claim that because there is a house that has remained unpainted, an inoperative automobile in the yard of a respondent, and a daycare business on one of the properties, the restrictive covenant is void because the character of the neighborhood has changed.  We disagree.

This court reviews a grant of summary judgment de novo to determine whether there is a disputed issue of material fact.  Zip Sort, Inc. v. Comm’r of Revenue, 567 N.W.2d 34, 37 (Minn. 1997).  When there has not been a change of character in the neighborhood, a party will not be barred from enforcing a restrictive covenant.  Strauss v. Ginzberg, 218 Minn. 57, 63-64, 15 N.W.2d 130, 134 (1944).  For there to be a change in the character of a neighborhood, the change must be so radical that the very purpose of the restriction is defeated.  See Batinich v. Harvey, 277 N.W.2d 355, 359 (Minn. 1979).

The district court properly concluded as a matter of law that the presence of an inoperative automobile in a backyard, a daycare business, and an unpainted home does not thwart the purpose of the restrictive covenant, and does not constitute a radical change.  Thus, taking all of appellants’ allegations as true, the district court did not err in concluding that the allegations did not raise an issue of material fact as to whether the character of the neighborhood had changed.


Appellants next argue that the same alleged covenant violations that arguably changed the character of the neighborhood also rendered respondents’ hands unclean, and thus bar the equitable relief granted by the district court.  We disagree.

“[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  In general, he who comes into equity must come with clean hands.  Hruska v. Chandler Assocs., Inc., 372 N.W.2d 709, 715 (Minn. 1985).  But the doctrine of unclean hands will only be invoked against a party whose conduct is unconscionable by reason of a bad motive, or where the result induced by his conduct will be unconscionable.  Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 450 (Minn. App. 2001).

Here, appellant argues that a number of covenant violations within the subdivision by the respondents themselves render respondents’ hands unclean. But other than the inoperative automobile in one of the respondent’s yards, which has since been moved into a garage, under the plain language of the covenant none of the alleged violations actually constitute a breach of the covenant.  Restrictions on the use of property will not be aided or extended by implication or enlarged by construction, and doubts will be resolved in favor of unrestricted use of property.  Mission Covenant Church v. Nelson, 253 Minn. 230, 233, 91 N.W.2d 440, 442 (1958). 

Moreover, even if appellants’ allegations were deemed to constitute actual violations of the covenant, the conduct at issue does not rise to the level of “unconscionable.”  Because appellants offered no evidence in support of a claim that respondents had bad motives in enforcing the covenant, appellants have failed to establish that unclean hands should bar the injunction.

            Finally, appellants argue that the doctrines of laches and estoppel should prevent respondents from enforcing the covenant against them.  But because these issues were merely asserted and not adequately supported by legal authority in appellants’ brief, we decline to address them.  State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc. 558 N.W.2d 480, 480 (Minn. 1997).


Appellants further argue that equity bars the injunction because respondents arbitrarily enforce the covenant.  Appellants support this argument by claiming that (1) an alleged telephone message from one of the respondents stated that the respondents would collectively deny appellants’ request to build the shed; and (2) respondents failed to enforce the covenant against appellants’ prior violations, and against an owner of an unpainted house and another homeowner whose house is in a state of disrepair.

“[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue.”  Russ, 566 N.W.2d at 71.  And here, because the alleged violations do not actually violate the covenant, there can be no arbitrary enforcement.  Mission Covenant Church, 253 Minn. at 233, 91 N.W.2d at 442 (holding that restrictions on use of property “will not be aided or extended by implication or enlarged by construction and doubt will be resolved in favor of the unrestricted use of property”).


Appellants argue that they did not have notice of the existence of the architectural committee that administers the covenant.  In addition, appellants claim that the committee was not validly constituted because respondents George Barr and Kathryn Helgeson are not owners of property within the subdivision, and therefore cannot be on the architectural committee.  We disagree.

Interpretation and construction of an unambiguous contract is a question of law which this court reviews de novo.  Wolfson v. City of St. Paul, 535 N.W.2d 384, 386 (Minn. App. 1995).  A restrictive covenant will be given its obvious meaning where the language used is clear and unambiguous.  LaValle v. Kulkay, 277 N.W.2d 400, 403 (Minn. 1979).  Minn. Stat. § 508.48 (1980) states that every instrument that affects title to land and is recorded shall be notice to all persons from the time of such registration.  Because the restrictive covenant in question was duly recorded in the Hennepin County Recorder’s Office in February of 1981 and contained in appellants’ certificate of title, appellants had knowledge of its provisions and existence.  Further, the plain language of paragraph 24 states that “[i]n the case of the death or incapacitation of any member of the Committee, the surviving member or members shall have the authority to . . . appoint a replacement or replacements to the Committee as so necessitated.”

The undisputed record indicates that respondent Dorothy Krekelberg (1) is the lone surviving member of the original covenantors; (2) still owns property within the subdivision; and (3) sits on the architectural committee.  Thus, under the plain language of the covenant, she has the authority to appoint committee members at will.  Because there is no requirement in the covenant that appointed members to the architectural committee actually own land within the subdivision, the ownership interests of George Barr and Kathryn Helgeson are irrelevant.  We conclude that the district court properly found that the committee is validly constituted.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.