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FIRST DIVISION
December 3, 2001

JUSTICE COUSINS delivered the opinion of the court:

Plaintiff-appellee William VandeLogt filed a complaint for apermanent injunction against defendants-appellants, Michael andSusan Brach, alleging that defendants were violating a protectivecovenant in their subdivision plat by building a second level totheir garage resulting in more than a two-car garage capacity. The permanent injunction was granted. Defendants now appeal thetrial court's order. The issues presented for review are whetherthe trial court erred by: (1) granting a permanent injunctionrequiring defendants to modify their garage to provide no morethan a two-car base dimension and a second floor with only astandard storage area; and (2) finding that waiver andacquiescence were not proved.

BACKGROUND

In August 1998, defendants began building a detached garageon their property in the Sunny Mead Acres subdivision (SunnyMead) of Inverness, Illinois (the Village). Sunny Mead consistsof 48 lots, each consisting of approximately one acre of land. Defendants' garage is 32 feet by 23 feet in dimension, totaling736 square feet. Defendants' property is immediately adjacent tothe southernmost region of plaintiff's property.

Defendants applied for various building permits relative tothe expansion of their garage, which included a second floor, inJanuary 1998. Following defendants' building permit application,Michael Brach signed an acknowledgment submitted to him by theVillage. It reads, in pertinent part, as follows:

"The undersigned, having applied to the Village ofInverness for a building permit, acknowledges:

(1) That there might be private covenants, conditions andrestrictions running with the title to the property which isthe subject of the permit applications which regulate,govern, control, and/or affect what type of improvements maybe made on the subject property;

(2) That the Village, by issuance of a building permithas no power to and does not abrogate, vary, terminate,waive, or release any such covenants, conditions, andrestrictions of record which may be applicable to thesubject property;

(3) that the undersigned remains obligated to comply withsuch covenants, conditions, and restrictions of recordnotwithstanding the fact that they have received a buildingpermit from the Village of Inverness."

Restrictive covenant number 1 of the protective covenants ofSunny Mead Acres, dated April 28, 1948, provides, in pertinentpart:

"No building shall be erected or permitted on any part ofthe premises except one single family dwelling and privategarage of not more than two-car capacity appurtenant theretoon any Lot."

In a letter dated March 5, 1998, the Village inquired as tothe intended use for the second level of the Brachs' garage. Ina letter dated March 9, 1998, the Brachs replied, "[T]he primaryuse of the area above the garage will be for storage and possiblya game room in the future." The Brachs were granted the buildingpermit in May 1998. The parties stipulate that in or about July1998, Michael Brach told plaintiff that he intended to build anunattached garage on his property. Around September 1, 1998,plaintiff noticed that the foundation of the Brach garage wasgoing to exceed what he would consider a capacity for two cars.

In a letter dated October 16, 1998, plaintiff's counseladvised defendants that plaintiff intended to file suit toenforce the restrictive covenants of Sunny Mead if constructioncontinued. Defendants halted further construction of the garage. Plaintiff's complaint for a permanent injunction presentedthe following allegations, in pertinent part:

"6. In or around July of 1998, the Defendant, MICHAELBRACH, during a conversation with Plaintiff, WILLIAMVANDELOGT, represented to Plaintiff that he intended tobuild an unattached garage on his property and that saidstructure was being built in compliance with the covenantsand restrictions of the subdivision of Sunny Mead.

7. On or about Mid-August, 1998, Defendants began construction of a structure that appeared to be larger thana two-car garage[;] however[,] Plaintiff relied onDefendants' representations that the structure would complywith the covenants and restrictions of Sunny Mead Acres.

8. It is now apparent that the structure has taken theform of a three-car garage in violation of said Plat ofSubdivision. ***

9. On or about October 16, 1998, Plaintiff sentcorrespondence to Defendants expressing his objection tosaid violation. *** Defendants have since halted furtherconstruction on the subject garage.

* * *

13. *** Plaintiff will be damaged in that the over-sizedstructure will limit his view of the surrounding nature.

14. The Plaintiff will be irreparably damaged ifequitable relief is not granted as requested.

15. The Plaintiff has no adequate remedy at law availablethat would provide the appropriate recovery."

In defendants' answer, defendants admitted that MichaelBrach had a conversation with plaintiff around July 1998, butdenied plaintiff's representation of that conversation. Defendants also admitted to "beginning construction of a garagehaving larger than a 2 car capacity about mid-August, 1998." Further, defendants presented three affirmative defenses: unclean hands, waiver, and acquiescence. Defendants assertedthat on or about October 29, 1998, and prior thereto, plaintiff"was aware that approximately 40% + of the homes in the SunnyMead Acres Subdivision had garages with more than a two carcapacity."

In plaintiff's amended response to defendants' request toadmit facts, plaintiff admitted that "two houses in the SunnyMead Acres Subdivision have four-car capacity garages *** and nohouses on Williams Road, other than Defendants' home, havegarages exceeding two-car capacity and that no garage exceedingtwo-car capacity is visible from Plaintiff's residence." Further, plaintiff admitted that "seven houses in the Sunny MeadAcres Subdivision have garages with a capacity exceeding twocars."

Defendants filed a motion for summary judgment alleging thatplaintiff "acquiesced in the violation of the restrictivecovenant by failing to enforce the same as to other violators,and has thereby waived his right to enforce the restrictionagainst Defendants." Defendants' affirmative defense of uncleanhands was not pursued in the motion for summary judgment. Plaintiff responded to the motion for summary judgment, assertingthat an issue of fact remained as to whether plaintiff was"forever barred from asserting an action against his neighbor forviolation of a covenant and restriction based on acquiescencewhen seven houses *** contain garages exceeding the two-carcapacity restriction." Defendants' motion for summary judgmentwas denied.

At trial, Michael Brach was called by plaintiff as anadverse witness. He testified that the original plans for thegarage included insulation drywall on the second floor and adouble outward opening door. In addition to the drywall anddouble doors, the plan for the garage included electricaloutlets, four-foot by five-foot windows, and a deck on the southside of the second floor. Michael testified that he applied forand was granted a building permit. Pursuant to the grant of thebuilding permit, Michael signed a document acknowledging thatthere may be covenants and restrictions running with theproperty. He testified: "I viewed it as a release of liabilityto cover the Village as far as if somebody did have a problemwith whatever you were doing or whatever." He also testifiedthat he became aware that there was a covenant and restrictionwith regard to the car capacity of his garage when he received aletter dated October 16, 1998, from plaintiff's attorney.

Upon cross-examination, Michael testified that the doubledoors were installed so that large objects could be brought inand stored on the second floor. He stated that he did not intendto occupy the second level and that it would not be used as aseparate residence. When the Village inquired as to the purposeof the space, the Brachs responded that it would be usedprimarily for storage, but at some point in the future, it maybecome a game room for the Brach children. Michael Brach also testified that he sought advice from an unidentified attorney tolook into whether he could build a detached garage. He receivedword that he could. The attorney did not otherwise review anypossible covenants or restrictions with the Brachs.

Plaintiff testified at trial that there are no garages onhis block that exceed a two-car capacity. He also testified thatno garages that exceed two-car capacity can be viewed from hishome. He stated that, of the seven houses in Sunny Mead thathave garages that exceed a two-car capacity, "Maybe, two of themmight have some rooms over the garage which are rooms as part oftheir house. I meant garages are [sic] attached." Relative tothe unattached garages in Sunny Mead, plaintiff was not aware ofany that had a second floor. Plaintiff recalled that defendantsbegan building their garage in late July 1998. He testified thathe told Mr. Brach that his garage had to be attached to his homebecause that is what a neighbor told him 40 years ago. Later,plaintiff discovered that an attached garage was not arequirement. Plaintiff denied that his reason for telling Mr.Brach that the garage had to be attached was because it blockedhis view of the retention pond. In September 1998, plaintifftold Mr. Brach that building the garage in that location "was alousy thing to do." Although plaintiff never saw anyone livingon the second floor, he believed it to be a second-floor livingspace. When the plaintiff's attorney sent the letter datedOctober 16, 1998, the garage was approximately two-thirdscomplete. Plaintiff was asked, "What is a two-car capacitygarage?" He responded, "In my estimation it's a garage that willnot hold three cars."

Susan Brach testified that she prepared a binder ofmaterials for this case which included the names of all propertyowners in Sunny Mead and the measurements of their garages. Someof the garages were measured by the Brachs, while the dimensionsof the others were supplied by the owners. Susan Brach testifiedthat in terms of square footage, there are 10 garages larger thanher current garage. However, none of them include a secondfloor. Mrs. Brach testified that plaintiff's northern neighbor,lot 46, has "a two-car garage attached to the home and then theyhave a single car garage unattached toward the back of the home."To her knowledge, the Sunny Mead covenants do not bar homeownersfrom having a second story on their garage.

In making its decision, the trial court noted that it didnot believe Michael Brach's testimony that he understood thesigned acknowledgment to be "a release of liability" for theVillage. The court also did not believe that Mr. Brach did notbecome aware of the restrictive covenants until he received theOctober 16, 1998, letter from plaintiff's counsel. The courtalso stated that the binder prepared by Susan Brach was "somewhatmisleading." It was difficult to see either the house or thegarage in some of the photos. Moreover, the court found itimportant that the Brach garage is the only "unattached three-cargarage with full second floor" and that there are only two othercompletely unattached three-car garages in the entire subdivision(lots 13 and 29-30). The court stated that most of the garagesthat have been labeled as four-car garages are in actuality twotwo-car garages or a two-car garage and a one-car garage.

Based upon the Brachs' response to the Village's inquiry andMichael Brach's testimony, the court held that, "What was erectedin this case was much more than a garage. It is a garage whichis really an annex to the home. *** I believe that this garagemust be altered." Relative to acquiescence and waiver, the courtstated that "Plaintiff has a right to enforce the covenant and hedid not sit on his rights." Plaintiff's motion for a permanentinjunction was granted.

The trial court's order directed defendants to make thenecessary modifications to the garage "so that it is incompliance with the covenants and restrictions of Sunny MeadAcres Subdivision." The order also required that the modifiedgarage not exceed a two-car capacity base floor and allow onlyfor a standard storage area above the garage.

ANALYSIS

I

Defendants contend that the trial court erred in granting apermanent injunction requiring them to modify their garage toprovide no more than a two-car base dimension and a second floorwith only a standard storage area. Plaintiff responds that thetrial court's construction of the restriction was "correct as amatter of law."

Restrictive covenants are to be strictly construed and willbe enforced only if they are reasonable, clear and definite. 400Condominium Ass'n v. Gedo, 183 Ill. App. 3d 582, 584, 539 N.E.3d256 (1989). A covenant should be interpreted to give effect tothe actual intent of the parties at the time the covenant wasmade. Streams Sports Club, Ltd. v. Richmond, 99 Ill. 2d 182,188, 457 N.E.2d 1226 (1983). The intent of the parties can bestbe determined by express contractual provisions. Streams SportsClub, 99 Ill. 2d at 188.

The covenant at issue here states, in pertinent part: "Nobuilding shall be erected or permitted on any part of thepremises except one single family dwelling and private garage ofnot more than two-car capacity appurtenant thereto on any Lot."(Emphasis added.) Defendants admitted in their answer toplaintiff's complaint that they began "construction of a garagehaving larger than a 2 car capacity about mid-August, 1998." Thephotos of defendants' garage show that defendants' garage exceedsa two-car capacity. The trial court found that the Brachs'garage was the only "unattached three-car garage with a fullsecond floor" in Sunny Mead.

Defendants assert that there is no evidence "other thansheer speculation by the trial court" that the second floor ofthe garage was being used for living space. When asked whetherthe original plans included an outward opening door that would bepractically used with a deck on the second floor, Michael Brachresponded: "Yes, it did. I think the plans specify that thatwas a future addition, but we are going to put one on there." When asked whether the original plans stated that the secondfloor of the garage was for storage and a future playroom, Brachresponded: "We did not designate what it was when we submittedthe plans. The Village didn't request additional information onthat and that is what we indicated to them and that was ouroriginal intention." Later, Mr. Brach testified that he did notintend to occupy the second floor of the garage as living spaceand that the deck was an entrance way. Based on the evidencepresented, including Michael Brach's testimony and the letterwritten by him in response to the Village's inquiries, the trialcourt concluded that the second level of the garage was intendedto be used as an extension of the home. The trial court stated,"The purpose of the subdivision restriction was to keep single-family dwellings with two-car garages" and the "plaintiff has aright to enforce the covenant." The trial court did not err. Defendants contend that the meaning of the words "not morethan two-car capacity" in the restrictive covenant are"ambiguous." However, in its decision the trial court stated"[a] two-car garage is a garage that has a two-car capacity, twostandard vehicles, or in this day and age even two standardsports utility vehicles. Defendants know what a two-car garageis. Any garage in which you can't fit a third car." The trialcourt did not misconstrue the restrictive covenant.

As to the second floor, the trial court stated, "So topreclude another motion coming back in, it does not mean theentire of everything from where the entire roof and everythinghas to be immediately above the cars. There can be a storagearea above the garage, but not a full second-story living space,not a place which is a game room, a club house, a second place toput the kids, or an au pair or whatever could be done with that. We are talking common sense." Again, regarding the second story,the trial court did not misconstrue the restrictive covenant.

II

Defendants assert that "waiver and acquiescence were provedby Defendants' significant, uncontradicted, and compellingevidence." Plaintiff responds that the trial court's findingthat waiver and acquiescence were not proved was not against themanifest weight of the evidence.

Waiver has been described as an intentional relinquishmentof a known right. Sexton v. Smith, 112 Ill. 2d 187, 193, 492N.E.2d 1284 (1986). Where there has been acquiescence in priorviolations of a particular restriction, the plaintiff'sacquiescence will result in the waiver of any right to enforcethe restriction. Watts v. Fritz, 29 Ill. 2d 517, 523, 194 N.E.2d276 (1963). Restrictive covenants will not be enforced whenproperty owners have acquiesced in prior violations of thecovenants. City of Rolling Meadows v. National Advertising Co.,228 Ill. App. 3d 737, 747, 593 N.E.2d 551 (1991). However, minorviolations do not prohibit subsequent enforcement of thecovenant. Rolling Meadows, 228 Ill. App. 3d at 747. Indetermining the extent of prior violations, separate and distinctrestrictions that have been violated will not amount toacquiescence of the violation currently at issue. Pettey v.First National Bank of Geneva, 225 Ill. App. 3d 539, 549, 588N.E.2d 412 (1992). Moreover, the trial judge's findings will notbe disturbed on review unless they were against the manifestweight of the evidence. Rolling Meadows, 228 Ill. App. 3d at747.

Relative to waiver and acquiescence, the trial court heldthat "plaintiff's forbearance from filing a cause of actionagainst any other property owner in the Sunny Mead subdivisiondid not constitute acquiescence on the part of the plaintiffbarring the claim." The trial court considered the proximitiesand locations of other properties relative to the plaintiff'slot. Lot 9 contains a single-family dwelling with two two-cargarages and is located on Haman Road. The trial court commented,"[N]obody could expect someone to start suing every neighbor inthe whole area on property that was so far away from them." Defendants' garage could be seen from plaintiff's property. Whenplaintiff became aware that the defendants' garage would exceedtwo-car capacity, which was prior to completion, he attempted tohalt construction.

Plaintiff cites to Paquette v. Coble, 271 Ill. App. 3d 1110,653 N.E.2d 1262 (1995), to illustrate what constitutes waiver andacquiescence of prior violations of a restrictive covenant thatwill result in a waiver of any right to enforce that restriction. The Paquette case discusses the "change of neighborhood" andwaiver defenses to a permanent injunction. In Paquette, asubdivision was platted in 1954 and, subsequently, a rider wasrecorded governing lots 2 through 5 permitting no more than onesingle-family residence to be built on any parcel of the premiseshaving an area of less than 2 1/4 acres. Plaintiffs, owners oflot 2, wished to subdivide the lot, which had an area ofapproximately 2.07 acres. Defendants owned the other three lots. Defendants claimed that the restrictive covenant prohibitedsubdivision. Plaintiff filed a declaratory judgment actionalleging, inter alia, that: (1) any prohibition of subdivisionwas waived as a result of the subdivision of lot 3 by deed and(2) the restrictive covenant was unenforceable due to the changedcondition of the area. Paquette, 271 Ill. App. 3d at 1111-12. The defendants argued that the subdivision of lot 3 and thebuilding of homes on the resulting two lots did not change thecharacter of the area and, thereby, did not render therestrictive covenant unenforceable. Paquette, 271 Ill. App. 3dat 1112.

The facts established that lot 3 consisted of an area ofabout 1.84 acres. In 1970, lot 3 was divided into half to createtwo lots, each less than one acre. Each of the resubdivided lotswas improved with a single-family residence. At the closing ofthe purchase of half of lot 3, the purchaser was told of thecovenant. The owner of lot 5 testified that the building of ahome on subdivided lot 2 would destroy the natural wooded beautyof the area.

The trial court entered judgment in favor of the plaintiffs,finding that the subdivision of lot 3 materially changed thearea, and, therefore, the restrictive covenant was unenforceable. Paquette, 271 Ill. App. 3d at 1112. Defendants appealed.

The appellate court affirmed the trial court's decision. Paquette, 271 Ill. App. 3d at 1114. The appellate court wrotethat the restrictive covenant did not expressly prohibitsubdivision. 271 Ill. App. 3d at 1114. It only prohibitedbuilding more than one single-family dwelling on an area smallerthan 2 1/4 acres. The appellate court held that the subdivisionof one of the other four lots in violation of the restrictivecovenant altered the character of the neighborhood so that thepurpose of the covenant could not longer be achieved. Paquette,271 Ill. App. 3d at 1115. The appellate court wrote, "We alsonote that defendants' predecessors in title did not enforce therestrictive covenant to prevent the building of homes on lotthree. Acquiescence in prior violations of a particularrestriction by a party will result in the party's waiver of anyright to enforce the restriction." Paquette, 271 Ill. App. 3d at1115-16.

While Paquette is instructive, its facts are dissimilar tothe facts in the instant case. There, unlike the instant case,the building on the subdivided lots altered the character of theneighborhood so that the purpose of the covenant could no longerbe achieved. There, one-fourth of the area lots subject to thecovenant did not conform to the restrictive covenant. Here,although defendants alleged that plaintiff was aware that"approximately 40% + of the homes in Sunny Mead Acres Subdivisionhad garages with more than a two car garage capacity," theevidence established that 7 out of 38 garages, or 18.5% of thegarages, in Sunny Mead exceed a two-car capacity. Importantly,also, the record does not establish when the garages were builtand which of the structures were built prior to plaintiff movinginto Sunny Mead.

Although not analogous, an even more instructive case isTones Inc. v. LaSalle National Bank of Chicago, 34 Ill. App. 3d236, 339 N.E.2d 3 (1975). In Tones, the plaintiff corporationfiled for a declaratory judgment to nullify a covenant whichrestricted the use of its property, lot 8 in block 1 of thesubdivision, to residential and farming purposes. Tones, 34 Ill.App. 3d at 239. The owner of lots 9 and 10 and the owner of lots17 though 20, inclusive, in block 1 who were named defendantsfiled a counterclaim also seeking to nullify the restrictions asto their respective lots. The restriction had been placed onlots 8, 9, 10 and 12 through 20, inclusive, in block 1 in 1960. Tones bought lot 8 in 1969. Lots 3 and 7 were being used bytheir owners for business purposes prior to the restriction. Lot11 was converted to business use in 1962. A shopping mall to thenorth was developed after the date of the restrictive covenantsin block 1. There was a McDonald's restaurant on lots 1 and 2 ofblock 1 at the time of trial. Homes had been built on block 3and 4 to the west of block 1. Various commercial and residentialproperties had been built in block 6 and 7 located across ahighway route from lots 4 through 8 of block 1.

The trial judge concluded that the restrictions on lots 8,9, and 10 were no longer binding by reason of the "changedconditions of [the] surrounding property." Tones, 34 Ill. App.3d at 240. The trial court reasoned that, while the property tothe north of the existing office building on lot 11 was notsuitable for residential purposes, there had not been such achange in the kind of usage for lots south of lot 11 to warrantthe lifting of the restriction as to lots 17 through 20. Tones,34 Ill. App. 3d at 240.

The issue before the appellate court in Tones was whetherthe evidence of changed conditions was sufficient to make thecovenant unenforceable. The defendant bank contended that thetrial court's finding that the restrictive covenant was no longerbinding on lots 8, 9, and 10 by reason of alleged changedconditions of the surrounding property was not supported by theevidence. Tones, 34 Ill. App. 3d at 238. At the time of trial,a tavern and pizza parlor was located on lot 3, a school had beenconstructed across the street from lots 4 through 8, and a churchhad been constructed to the west of lot 11. Tones, 34 Ill. App.3d at 239-40. It was established that the commercial officebuilding on lot 11, which was not subject to the restrictivecovenant, was constructed after the covenant went into effect. Tones, 34 Ill. App. 3d at 242. The commercial uses on lots 3 and7 appeared to have preceded the covenant. Tones, 34 Ill. App. 3dat 242.

The appellate court reversed the trial court and held: "[T]he record does not support the finding that the change in theneighborhood conditions subsequent to the recording of therestrictive covenant was sufficient to warrant the removal of therestriction as to any of the lots affected by it. *** And theproof is insufficient to clearly show that the removal of therestrictions on Lots 8 through 10 would not adversely affect theresidential property for whose benefit the restriction wasintended." Tones, 34 Ill. App. 3d at 242. Additionally, thecourt wrote, "There is no evidence in the record to show thatdefendants either abandoned or acquiesced in the violation of therestrictive covenant." Tones, 34 Ill. App. 3d 243.

The appellate court in Tones reasoned that the burden ofproving that there has been a change in circumstances affectingthe validity of the restriction, so that the object of therestriction can no longer be accomplished and therefore may beremoved without unjustly injuring neighboring properties, is onthe party who seeks relief from the enforcement of therestriction. Tones, 34 Ill. App. 3d at 242.

In the instant case, the restrictive covenant barredconstruction of a garage exceeding a two-car capacity. Also,here, similar to Tones, we hold that there is no evidence in therecord to show that plaintiff either abandoned or acquiesced inany violations of the restrictive covenant in Sunny Mead.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

COHEN, P.J., and McNULTY, J., concur.