## Facts

- Property owners in a residential subdivision took title subject to recorded protective covenants requiring (1) wood shingle roofs on all structures and (2) committee approval for plans and exterior changes.
- For years, the subdivision’s Community Development Committee mistakenly believed the covenants had been amended and approved multiple non-wood roofs (including tile and fiberglass/asphalt), and some owners installed non-wood roofs without approval.
- In 1985, the Committee learned no valid amendment had been recorded and attempted thereafter to enforce the wood-shingle requirement.
- The Millers obtained committee approval in 1990 for plans specifying wood shingles.
- In 1991, the Millers requested permission to switch to fiberglass shingles; the Committee denied the request, but the Millers installed fiberglass shingles anyway.
- A neighboring owner sued for a permanent injunction to enforce the wood-shingle covenant and to prevent installation or require removal of the fiberglass roof.
- The trial court denied injunctive relief, concluding the wood-shingle material restriction was no longer enforceable as an exclusive requirement, given the subdivision’s existing roof conditions.
- At the time of litigation, the court found 23 of 81 roofs in the subdivision were not wood shingles.

## Issues

1. Whether the subdivision covenant requiring wood shingles for all roofs had been abandoned by widespread, visible, and longstanding violations, making it unenforceable against the Millers.
2. What standard governs abandonment of a restrictive covenant regulating subdivision building materials.

## Decision

- The court affirmed the denial of a permanent injunction.
- The court held the wood-shingle covenant had been abandoned and was unenforceable as to roofing material.
- The court rejected use of a general “change in circumstances” test for this type of claim and affirmed on the independent ground of abandonment.
- The court limited its ruling to the wood-shingle restriction and did not treat other subdivision covenants as abandoned.

## Legal Principles

- A restrictive covenant may become unenforceable if the specific covenant sought to be enforced has been abandoned.
- Abandonment is shown when existing violations are so extensive that an average person, aware of the restriction and inspecting the subdivision, would reasonably conclude the restriction is no longer followed or enforced.
- In assessing abandonment, courts consider: (1) the number, nature, and severity of existing violations; and, if needed to resolve doubt, (2) prior enforcement efforts and (3) whether the covenant’s intended benefits can still be substantially realized.
- Abandonment is covenant-specific; abandonment of one restriction does not, by itself, establish abandonment of other restrictions in the same set of covenants.

## Conclusion

Because a substantial, readily observable portion of the subdivision had non-wood roofs and the restriction’s uniformity benefit could not be substantially achieved by belated enforcement, the wood-shingle covenant was deemed abandoned, defeating the requested injunction against the Millers’ fiberglass shingles.


Fink v. Miller, 896 P.2d 649 (Utah Ct. App. 1995)