## Facts

- B.B.P. Corporation (BBP) developed the University Heights Subdivision and conveyed lots subject to recorded protective covenants.
- Covenant 5 required owners to cut and destroy poplar, cottonwood, and aspen trees.
- Covenant 6 required owners to cut or trim trees that unreasonably obstructed views from certain downhill dwellings.
- The plat provided that covenants could be modified or repealed only by agreement of (1) the BBP board of trustees and (2) at least three-quarters of all lot owners.
- Strict compliance with Covenant 5 proved nearly impossible because the specified trees quickly reseeded and regrew; no lot fully complied, including property associated with BBP’s president.
- Many owners nonetheless complied with Covenant 6 when view-trimming requests were made.
- In March 1986, a newly elected BBP board voted to repeal Covenants 5 and 6 and recorded the modification, asserting authority under the amendment provision.
- Shortly before that vote, BBP sued several lot owners (including Carroll) seeking to enforce Covenants 5 and 6.
- Defendants sought summary judgment, arguing the covenants had been validly repealed or, alternatively, abandoned by subdivision-wide noncompliance.

## Issues

1. Whether the recorded attempt to repeal Covenants 5 and 6 was effective under the plat’s required procedures (board approval plus three-quarters of all lot owners).
2. Whether subdivision-wide noncompliance, particularly with Covenant 5, established abandonment of Covenants 5 and 6 as a matter of law.
3. Whether BBP could pursue judicial enforcement of the covenants despite any lapse of time-limited self-help rights in the covenants.

## Decision

- The Alaska Supreme Court reversed the summary judgment entered for the lot owners.
- The court held the attempted repeal of Covenants 5 and 6 was invalid because the required election/approval procedures were not properly followed.
- The court held the covenants were not abandoned as a matter of law; widespread noncompliance with Covenant 5 did not conclusively show an intent to relinquish the subdivision’s scheme, especially given continued adherence to Covenant 6 when requested.
- The case was remanded for further proceedings with the covenants treated as still in force.

## Legal Principles

- When recorded subdivision instruments specify a method to amend or repeal restrictive covenants, the prescribed procedures and voting thresholds must be strictly satisfied; a procedurally defective repeal is ineffective.
- Abandonment of a restrictive covenant requires more than frequent violations; courts look for conduct showing the restriction is no longer relied upon or no longer serves the subdivision’s general plan.
- Continued observance or enforcement of related restrictions within the same scheme can defeat a claim that the scheme has been abandoned.
- The expiration of a time-limited self-help remedy does not, by itself, terminate the ability to seek judicial enforcement of otherwise valid recorded covenants.

## Conclusion

The court held that Covenants 5 and 6 remained enforceable because the attempted repeal did not comply with the plat’s required approval procedures and because the record did not compel a finding that the covenants had been abandoned; summary judgment for the lot owners was reversed and the case remanded.


B.B.P. Corp. v. Carroll, 760 P.2d 519 (Alaska 1988)