Index of Terms (non-exhaustive)
The test to determine “abandonment” of a restrictive covenant requires the party challenging enforcement to prove existing violations are so great as to lead the mind of an average person to reasonably conclude that the restriction in question has been abandoned. This test is met when an average person, upon inspection of subdivision and knowing certain restrictions, will readily observe sufficient violations so that she will logically infer that property owners neither adhere to nor enforce the restriction.
The court in Swenson stated, for determining whether the owners had abandoned a covenant, the court “must examine: (1) the number, nature and severity of the then existing violations; (2) any prior act of enforcement of the restriction; and (3) whether it is still possible to realize to a substantial degree the benefits intended through the covenant.”
Regarding #2, Fink held record of enforcement was problematic where ARC enforced consistently from ’85 to ’93 (present) but laxity during 1978-85 period where, by ’85, only 8 of 29 houses conformed to wood shingle requirement.
The case law is uniform that before an abandonment of a covenant may be found there must be “substantial and general noncompliance” with the covenant. B.B.P. Corp. v. Carroll, 760 P.2d 519, 524 (Alaska 1988); Tompkins, 659 P.2d at 867. One court has stated that in order for there to be an abandonment, a covenant must be “habitually and substantially violated.” Reading v. Keller, 67 Wash.2d 86, 406 P.2d 634, 637 (1965) (internal quotations omitted). The violations must be so substantial as to destroy the usefulness of the covenant and support a finding that the covenant has become burdensome. See Keller v. Branton, 667 P.2d 650, 654 (Wyo.1983). If the original purpose of the covenant can still be accomplished and substantial benefit will continue to inure to residents, the covenant will stand. See Tompkins, 659 P.2d at 867. This court in Papanikolas Brothers Enterprises v. Sugarhouse Shopping Center Associates, 535 P.2d 1256 (Utah 1975), in determining whether a covenant should no longer be enforceable because of changed conditions, stated:
Before a change will vitiate a covenant, it must be of such a magnitude as to neutralize the benefits of the restriction, to the point of defeating the object and purpose of the restrictive covenant. The change required to afford relief is reached, where the circumstances render the covenant of little or no value. Here, the purpose of the restriction is yet a valid one, and the contemplated benefits to the plaintiff still exist. The purpose of the covenant has neither ceased nor become useless.
Swenson v. Erickson (998 P.2d 807 at 813, UT ’00).
Relevant statutes and cases: