Malone v. Guynes
2007 Ark. App. LEXIS 121, 250 S.W.3d 260, 98 Ark. App. 48 (2007)
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Rule of Law:
A restrictive covenant that limits the use of property but does not prevent an owner's interest from vesting is not subject to the rule against perpetuities. Furthermore, prior violations of other, different restrictive covenants do not constitute a waiver of the specific covenant at issue.
Facts:
- An individual (Appellant) owns a lot in a residential subdivision.
- The subdivision is governed by a set of restrictive covenants applicable to all lots.
- One covenant explicitly limits construction to single-family residences and prohibits multifamily dwellings.
- In the past, other lot owners had violated different covenants, such as those concerning setback requirements and prohibitions on mobile homes.
- Appellant began efforts to construct a duplex, a type of multifamily dwelling, on their lot in violation of the single-family residence covenant.
Procedural Posture:
- Appellees, who are other lot owners in the subdivision, sued Appellant in the trial court to obtain an injunction to stop the construction of a duplex.
- Both parties moved for summary judgment.
- The trial court granted summary judgment in favor of the Appellees, thereby enjoining the construction.
- Appellant appealed the trial court's grant of summary judgment to the Court of Appeals of Arkansas.
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Issue:
Is a restrictive covenant prohibiting multifamily dwellings unenforceable because it either violates the rule against perpetuities or has been waived due to past violations of other, different covenants in the subdivision?
Opinions:
Majority - Jhon Mauzy Pittman
No. A restrictive covenant limiting property use to single-family dwellings is enforceable and does not violate the rule against perpetuities, nor is it waived by violations of other covenants. The court rejected the appellant's first argument because the rule against perpetuities applies only to future interests that may not vest within a specific time frame. Here, the appellant's ownership interest vested immediately upon purchase; the covenant is merely a contractual restriction on the use of the property, not a restraint on vesting or alienation. Citing Kell v. Bella Vista Village, the court affirmed that such use restrictions are not subject to the rule. The court also rejected the appellant's second argument regarding waiver. Citing Jones v. Cook, the court held that to establish waiver, one must show a substantial breach of the same restriction being challenged. The appellant only provided evidence of violations of other covenants (e.g., setback requirements), not the specific covenant against multifamily dwellings. Therefore, the existence of unrelated violations does not constitute an acquiescence or waiver of the single-family residence restriction.
Analysis:
This decision reinforces the durability of restrictive covenants in property law. It clearly distinguishes between use restrictions, which are generally permissible, and restraints on vesting that trigger the rule against perpetuities. By clarifying this distinction, the court protects the common practice of using long-term or indefinite covenants to maintain a neighborhood's character. Furthermore, the ruling sets a high standard for claiming waiver, requiring that any past violations be of the specific covenant in question. This prevents property owners from using minor or unrelated infractions as a basis to dismantle a subdivision's entire developmental plan.
