Plaintiff and Defendant bought lots in a subdivided area. The lot contained a covenant that required shingles of the structures on the land to be built in wood. The Community Development Committee, the community that must approve building plans, thought the covenant had been amended to include alternative roofing materials. Based on this interpretation, the Committee granted building requests to many individuals. Later, the Committee realized their interpretation of the covenant was incorrect, after other families on the property had constructed shingles out of products other than wood. Defendant sought approval for his building plan to build shingles out of fiberglass. The Committee denied the request, and Defendant built them any way. Plaintiff brought suit to enjoin Defendant. The trial court granted Defendant’s motion for summary judgment, and Plaintiff appealed.
If there are apparent violations of great number, nature, and severity that cause an average individual to believe that the property owners do not adhere or enforce the covenant, then the covenant is abandoned.
Plaintiff, C.W. Fink, and Defendants, Shannon and Jim Miller, bought lots in a subdivided land, which was subject to protective covenants that stated it was mandatory to have wood shingles on the roof of all structures. Also, the covenant mandated the Community Development Committee’s approval of all building plans on the land. Before 1985, the Committee obtained a copy of the covenant agreement in question with annotations in writing, indicating alternative roofing materials were allowed. Thereafter, the Committee approved building plans with tile or fiberglass asphalt shingle roofs. Later, in 1985, the Committee became aware that the covenant was not truly amended to include annotations in writing. At that time, twenty-one homes had completed their shingle roofs with tile or fiberglass asphalt. The Committee tried to enforce the covenant. In 1990, when Defendant requested building approvals from the Committee to change their shingles to fiberglass, the Committee denied the request. Nonetheless, Defendant began to build the shingles anyways. In 1991, Plaintiff sued Defendant seeking an injunction. The trial court granted summary judgment for Defendant. Plaintiff appealed.
Whether a covenant is abandoned when there are apparent violations of great number, nature, and severity that cause an average individual to believe that the property owners do not adhere or enforce the covenant.
Yes, if there are apparent violations of great number, nature, and severity that cause an average individual to believe that the property owners do not adhere or enforce the covenant, then the covenant is abandoned.
If the nature, number, and severity of the covenant violations lead an average person to believe that the covenant has been abandoned, then the covenant is deemed abandoned The court must also weigh other factors such as has there been prior acts of enforcement and would it be possible to notice the benefits of the covenant. In this case, twenty-one of the eighty-one houses on the subdivision have roofs that are not made from wood, which the court noted is a substantial number. Also, the prior acts of the enforcement of the covenant are almost nonexistent. The purpose of the covenant, uniform development, can no longer be justified because an average person would not believe the subdivision is presently uniform. Therefore, the trial court’s grant of summary judgment is affirmed.