Fink v. Miller

Court of Appeals of Utah
896 P.2d 649 (1995)

ELI5:

Rule of Law:

A restrictive covenant concerning aesthetic building materials is considered abandoned and unenforceable when existing violations are so numerous and substantial that a reasonable person, upon inspection, would conclude the property owners no longer adhere to or enforce the restriction.

Facts:

C.W. Fink and Shannon Miller purchased lots in the Maple Hills Subdivision, which was subject to a recorded covenant requiring all structures to have 'wood shingles' on their exterior roofs.
A Community Development Committee was responsible for approving building plans and enforcing the covenants.
Prior to 1985, the Committee, operating under the mistaken belief that the covenant had been amended, approved plans for tile roofs.
During this same period, six additional homes were built with unapproved fiberglass/asphalt shingle roofs.
By the end of 1985, only 8 of the 29 completed homes had the required wood shingle roofs, while 21 had non-conforming roofs.
In 1990, the Committee approved the Millers' initial plans, which included a wood shingle roof.
A year later, the Millers requested a change to fiberglass shingles, which the Committee denied.
Despite the denial, the Millers proceeded with the installation of a fiberglass shingle roof.

Procedural Posture:

Plaintiff C.W. Fink sued Defendants Shannon Miller and her husband in the state trial court to enforce the restrictive covenant.
Fink filed a motion for injunctive relief to prevent the Millers from installing fiberglass shingles.
The trial court issued a temporary restraining order and subsequently granted a preliminary injunction in favor of Fink.
Both parties later filed cross-motions for summary judgment.
After a hearing and personal observation of the subdivision, the trial court granted summary judgment in favor of the Millers, ruling the covenant was unenforceable and denying Fink's request for a permanent injunction.
Fink, the plaintiff-appellant, appealed the trial court's final order to the Utah Court of Appeals.

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Issue:

Is a restrictive covenant requiring wood shingle roofs unenforceable due to abandonment when 23 of the 81 homes in the subdivision have non-conforming roofs?

Opinions:

Majority - Orme, Presiding Judge

Yes, the restrictive covenant is unenforceable due to abandonment. The court establishes that for an aesthetic covenant, the proper test for abandonment is whether existing violations are so great as to lead a reasonable person to conclude the restriction has been abandoned. Here, the undisputed fact that 23 out of 81 homes—over 28%—do not conform to the wood shingle requirement is sufficient, as a matter of law, to demonstrate abandonment. It is irrelevant whether the non-conforming roofs were mistakenly approved by the Committee or installed without approval; the sheer number of violations has destroyed the uniformity the covenant was intended to protect. The court distinguished this test from the 'change in circumstances' test used for use-based restrictions, finding this new 'average person' standard more appropriate for purely aesthetic covenants. While this specific covenant is abandoned, other covenants in the agreement, such as those governing the color and quality of materials, may still be enforceable.

Analysis:

This decision establishes a new, more objective test in Utah for determining the abandonment of aesthetic restrictive covenants, distinguishing them from use-based covenants. By adopting the 'average person' standard, the court shifts the focus from a subjective analysis of neighborhood character change to a more quantitative assessment of the number and nature of violations. This provides clearer guidance for homeowner associations, emphasizing that failure to consistently enforce a covenant can lead to its unenforceability. The ruling serves as a precedent that makes it more difficult to selectively or belatedly enforce aesthetic rules that have been widely ignored over time.

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