Fink v. Miller

Utah Court of Appeals · 1995 · Property

PropertyRestrictive covenantsAbandonmentSubdivision covenantsArchitectural controlsrestrictive covenantabandonmentroofing restriction

Facts

Fink and Miller owned lots in Maple Hills Subdivision and took title subject to recorded protective covenants requiring wood shingles on all exterior roofs and committee approval of plans and materials. Before 1985, the committee mistakenly believed the covenant had been amended to allow tile roofs and approved some tile roofs, while six homes were built with fiberglass/asphalt roofs without approval. By July 1993, twenty-three of eighty-one completed homes had non-wood roofs, although after 1985 the committee tried to enforce the wood-shingle requirement. The Millers' plans were originally approved with a wood roof, but after the committee denied their request to substitute fiberglass shingles, they began installing fiberglass shingles and Fink sued to enjoin them.

Issue

Whether the subdivision covenant requiring wood shingle roofing remained enforceable or had been abandoned because of widespread violations. Also, whether any disputed material facts about committee approval or acquiescence barred summary judgment for the Millers.

Rule

For a restrictive covenant aimed at aesthetics rather than land use, abandonment is shown when the party opposing enforcement proves that existing violations are so great as to lead the mind of the average person to reasonably conclude that the restriction has been abandoned. In applying that test, courts consider the number, nature, and severity of existing violations, any prior acts of enforcement, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant; if the first factors alone establish abandonment, further inquiry is unnecessary.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a hillside subdivision in Ogden, Utah, recorded covenants require all homes to use natural slate on exterior roofs. By the time Nora Jensen sues her neighbor, 18 of the 60 completed homes have visible metal or composite roofs. Some of those roofs were approved by the subdivision design committee, and some were installed without approval.

If Nora seeks an injunction requiring her neighbor to replace a composite roof with slate, what is the strongest argument against enforcement of the slate-roof covenant?

Explanation. For an aesthetic or building-material covenant, the proper abandonment inquiry is objective: whether existing violations are so great that an average person would reasonably conclude the restriction has been abandoned. The court focuses first on the number, nature, and severity of the violations. Visible nonconforming roofs count as violations whether previously approved, mistakenly approved, or unapproved. The residential-character change test applies to land-use restrictions, not this kind of aesthetic material restriction.