To determine abandonment of a restrictive covenant requires proof that existing violations of the covenant are so great as to lead the mind of the average person to reasonably conclude that the restriction in question has been abandoned. This test is met when the average person, upon inspection of a subdivision and knowing of a certain restriction, will readily observe sufficient violations so that he or she will logically infer that the property owners neither adhere to nor enforce the restriction. In applying this test, courts consider the number, nature, and severity of the then existing violations, any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant.
The neighbor and homeowners owned property in a subdivision that was subject to a set of restrictive covenants. One of those restrictions recited that wood shingles were required on the roofs of all homes. The homeowners sought but were denied permission from a committee to use a roofing material other than wood shingles. They commenced using a different material anyway, and the neighbor brought an enforcement action against them. The trial court initially entered a preliminary injunction prohibiting the homeowners from constructing their roof. However, upon further hearings and a viewing of the subdivision, the trial court quashed all injunctive relief against the homeowners and granted their motion for summary judgment.
Was the restrictive covenant enforceable?
The court held that where 23 out of 81 homes in the subdivision did not have wood shingle roofs, the violations of the covenant were sufficiently widespread that the court deemed the restriction abandoned as a matter of law and ruled that it was no longer enforceable.