Burke v. Voicestream Wireless Corp. II

207 Ariz. 393, 87 P.3d 81 (Ct. App. 2004)

 

RULE:

Restrictive covenants in deeds constitute a contract between subdivision's property owners as a whole, and individual lot owners.

FACTS:

A building owner of a worship center and the telephone company (Voicestream) entered into an agreement to erect a communications tower, but disguised as a bell tower. Property owners of adjacent lots alleged that the construction of the communications tower breached restrictive covenants within the subdivision. In the trial court, it was held that the restrictions had been waived on numerous occasions, and therefore ruled in favor of Voicestream. On appeal, plaintiffs argued that the trial court erred as a matter of law when it found that a section of the restrictions was ambiguous and should be interpreted to apply only to habitable structures.

ISSUE:

Do restrictive covenants remain in force after prior violations that did not alter the overall covenant scheme?

ANSWER:

Yes.

CONCLUSION:

The appellate court disagreed with the trial court and concluded that the restrictions' provision referred to other types of structures. The appellate court further determined that erecting and maintaining a 50-foot tower on any lot in the subdivision was prohibited by the restrictions. The fact that the property owners in the subdivision chose to allow complementary structures that did not negatively impact the character of the neighborhood did not defeat the meaning of the restrictions. Corollarily, it was discussed that generally, without a non-waiver provision, deed restrictions may be waived “if frequent violations of those restrictions have been permitted.” But when they contain such a provision, a restriction remains enforceable, despite prior violations, as long as the violations did not constitute a complete abandonment of deed restrictions.

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