Abandonment of a covenant requires proof that prior violations have eroded the general plan, and enforcement is therefore inequitable. A covenant is abandoned when it has been habitually and substantially violated. But a few violations do not constitute abandonment.
Appellant began operating a day-care in their residence. A restrictive covenant prohibited home businesses in the neighborhood, and appellant's property was subject to the covenant. Appellee sued to enjoin the day-care operation. The trial court concluded that the day-care was a business, the appellee had an equitable right to enforce the covenant, and enjoined appellant from operating the day care. On appeal, appellant argued that the trial court erred by enjoining his day-care business because the restrictive covenant was abandoned or violated public policy. Appellant also asserted the defenses of laches and equitable estoppel. The appellate court affirmed the trial court’s order.
Did the trial court err in enjoining appellant’s day-care business because the restrictive covenant was abandoned, or violated public policy?
While there was evidence of other home businesses in the neighborhood, these violations were neither habitual nor substantial, and therefore did not constitute abandonment of the covenant. Appellant did not demonstrate material changes in neighborhood to defeat enforcement of the covenant. The trial court's findings were amply supported by the evidence, and supported its conclusions of law that the covenant had not been abandoned through disuse. The covenants also did not violate public policy.