## Facts

- A 1984 declaration of restrictive covenants was recorded for specified lots in a Missoula County subdivision and included a clause allowing the covenants to be “waived, terminated, modified, or changed” with written consent of owners holding at least 65% of the acreage.
- In 1994, an amendment approved by the requisite supermajority separated enforcement of the covenants for tracts on opposite sides of a road.
- The subdivision’s common access road, Windemere Drive, generated complaints related to dust, mud, visibility, and emergency access; residents sought paving.
- In 1997, owners holding more than 65% approved an amendment that (1) created a homeowners association and (2) authorized it to manage maintenance and repairs and to assess all lot owners to pay for paving Windemere Drive.
- Several owners who did not consent to the 1997 amendment refused to pay the paving assessment.
- The association filed a declaratory judgment action to enforce the 1997 amendment and collect assessments.

## Issues

1. Whether the original amendment clause authorized an amendment creating a homeowners association and imposing road-paving assessments, even if such obligations were not expressly stated in the original covenants.
2. Whether the district court’s finding that the paving addressed health and safety concerns constituted reversible error.
3. Whether the 1997 amendment was invalid or unenforceable against particular parcels because it did not include separate legal descriptions of those parcels.

## Decision

- The Montana Supreme Court affirmed summary judgment for the association enforcing the 1997 amendment and the assessments.
- The amendment clause permitted the 1997 amendment, including creation of the association and the assessment authority.
- Any dispute about characterizing the paving as motivated by health and safety concerns was not reversible error.
- The 1997 amendment bound the nonconsenting owners’ parcels despite not repeating individual legal descriptions, because the recorded declaration already identified the affected property and the amendment clearly referenced and modified it.

## Legal Principles

- When restrictive covenants expressly allow amendment by a specified supermajority, amendments adopted in compliance with that procedure may impose significant changes, including organizational governance mechanisms and common-improvement funding obligations, when reasonably related to the recorded covenant scheme.
- An amendment to a recorded declaration need not restate individual legal descriptions of each parcel if the amendment clearly references the existing recorded instrument that already identifies the encumbered property and provides notice of the parcels affected.
- Factual findings that do not affect the legal validity of an otherwise properly adopted covenant amendment generally do not warrant reversal absent prejudicial error.

## Conclusion

The court upheld a supermajority-approved covenant amendment creating a homeowners association and authorizing subdivision-wide assessments for paving a common road, and enforced the amendment against nonconsenting owners because it was adopted under the declaration’s amendment clause and sufficiently tied to the recorded property description in the original declaration.


Windemere Homeowners Ass’n, Inc. v. McCue, 990 P.2d 769 (Mont. 1999)