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

896 P.2d 649 (1995)

C.W. Fink, Plaintiff and Appellant,
v.
Jim Miller and Shannon Miller, Defendants and Appellees.

No. 940267-CA.
Court of Appeals of Utah.
May 25, 1995.

650*650 David J. Bird, Richards, Bird & Kump, P.C., Salt Lake City, for appellant.  Thomas F. Rogan, Salt Lake City, for appellees.

Before ORME, P.J., and DAVIS, Associate P.J., and JACKSON, J.

OPINION

ORME, Presiding Judge:

Plaintiff appeals the trial court's order declaring a subdivision's restrictive covenant requiring wood shingle roofing to be unenforceable.  Having concluded that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument," Utah R.App.P. 29(a)(3), we affirm.

FACTS

Plaintiff C.W. Fink and defendant Shannon Miller purchased lots in Maple Hills Subdivision No. 3, Plat D, located in the east bench *651 area of Bountiful, Utah.  Both parties received copies of the Agreement for Protective Covenants, recorded in Davis County by the developer of Maple Hills in 1978.[1]  One of the covenants recites that "[w]ood shingles... shall be required on the exterior roofs of all structures."  Also, prospective home builders, as well as owners intending to improve or alter existing structures, must submit all plans and specifications, including proposed exterior colors and materials, to the Community Development Committee[2] for its approval before commencing construction.

Sometime prior to 1985, Committee members received a copy of the Agreement with a handwritten addition to the roofing materials provision, so that the restriction read "wood shingles or bar tile."  Consequently, prior to 1985 the Committee approved plans calling for tile roofs.  In 1985 it learned that the covenant had not, in fact, been thus amended.  Meanwhile, six homes were built with fiberglass/asphalt shingle roofs without Committee approval. By the end of 1985, twenty-nine homes had been completed in Maple Hills. Eight homes had wood shingle roofs, while twenty-one homes had either tile or fiberglass/asphalt shingle roofs.

Nevertheless, subsequent to 1985, the Committee has sought to enforce the covenant restricting roofing materials to wood shingles and has refused to approve plans that included tile or fiberglass/asphalt shingle roofs.  In 1990, the Committee approved plans submitted by defendants Shannon Miller and her husband, Jim Miller, which called for a wood shingle roof.  One year later, the Millers requested approval to change the originally specified roofing material from wood shingles to fiberglass shingles.  After the Committee denied the change, the Millers nonetheless commenced installation of fiberglass shingles.[3]

In November 1991, Fink commenced this action and filed an ex parte motion seeking injunctive relief to prevent the installation of fiberglass shingles on the Millers' home.  In response to his motion, the trial court issued a temporary restraining order and soon held a hearing regarding a preliminary injunction.  Late in 1991, the court granted a preliminary injunction enjoining the Millers from installing *652 any roofing material other than wood shingles.  The court concluded there had "been no general waiver or abandonment of the Covenants."

Fink filed a motion for summary judgment and permanent injunction in July 1993, and the Millers filed their own motion for summary judgment in August 1993.  After a hearing in September, the trial court considered the parties' written submissions, personally observed the subdivision, and then issued a minute entry on October 7, 1993.  The court held that the covenant restricting roofing materials to only wood shingles is unenforceable.  However, it continued the preliminary injunction in effect pending the parties' submission of memoranda on the issue of "irreparable harm."

Another hearing was held November 8, 1993.  On February 2, 1994, the trial court issued its final order, quashing all prior injunctive relief and denying a permanent injunction.  The court, noting in its factual findings that as of July 1993 the subdivision's eighty-one completed homes included fifty-eighty-one completed homes included fifty-eight homes with wood shingle roofs and twenty-three homes with non-wood roofs, concluded that the covenants still validly restricted the color and quality of materials, but could not restrict roofing materials by type.  The court opined that the Committee must approve any roofing materials of adequate quality that blend "harmoniously with the current neighborhood." Fink now appeals from this order.

ISSUES

Fink's arguments focus on two issues: (1) whether the trial court erred in concluding, as a matter of law, that the covenant restricting roofing materials to wood shingles cannot be enforced and (2) whether there existed disputed material facts which should have precluded the court's grant of summary judgment in favor of the Millers.

STANDARD OF REVIEW

Summary judgment is appropriate only if there is no genuine issue of material fact and, given the facts, the moving party is entitled to judgment as a matter of law.  Utah R.Civ.P. 56(c); Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993). We review the trial court's decision to grant summary judgment for correctness, viewing "the facts in the light most favorable to the losing party."  Green v. Stansfield, 886 P.2d 117, 119 (Utah App.1994).  We also review the trial court's determinations of law for correctness.  State v. Pena, 869 P.2d 932, 936 (Utah 1994).

ENFORCEABILITY OF THE COVENANT

As a general proposition, property owners who have purchased land in a subdivision, subject to a recorded set of restrictive covenants and conditions, have the right to enforce such restrictions through equitable relief against property owners who do not comply with the stated restrictions.  See Crimmins v. Simonds, 636 P.2d 478, 480 (Utah 1981) (noting property owners' protectable interest in enforceability of covenants).  See generally Roger A. Cunningham et al., The Law of Property §§ 8.32, 8.33 (1984).  However, as explained below, property owners may lose this right if the specific covenant they seek to enforce has been abandoned, thereby rendering the covenant unenforceable.

1. Applicable law

In the instant case, the trial court, as well as the parties, relied upon Crimmins v. Simonds, 636 P.2d 478, 480 (Utah 1981), in analyzing the enforceability of the covenant restricting roofing materials.  In Crimmins, the Utah Supreme Court examined a restriction forbidding the operation of a trade or business within a subdivision and held that a restrictive covenant is unenforceable if a change in circumstances in the neighborhood is "so great that it clearly neutralizes the benefits of the restriction to the point of defeating its purpose, or ... renders the covenant valueless."  Id. at 479.  This analysis is useful in the context of restrictions that are closely related to the use of the affected property, such as a covenant that forbids commercial operations or limits land use to agricultural activities. Repeated violations of such covenants may directly affect the nature *653 and character of a particular area or neighborhood, thereby producing a discernible change in circumstances.  The Court in Crimmins determined that most of the property owners operating existing businesses in the subdivision did so out of their homes, i.e., they were residents whose business activities were secondary to their residential activities.  Id. at 480.  Accordingly, the predominantly residential character of the neighborhood had not changed so dramatically as to render the prohibition on commercial activities valueless.  Id.

However, unlike the covenant at issue in Crimmins, the covenant in the instant case restricts not the use of the property itself, but merely the selection of certain building materials for aesthetic purposes.  Violations of this sort of covenant would not produce obvious changes in the fundamental nature of the Maple Hills subdivision — its upscale residential character remains unchanged.[4]  Instead, a more appropriate test to determine abandonment of such a covenant requires the party opposing enforcement to prove that existing "violations are so great as to lead the mind of the average [person] to reasonably conclude that the restriction in question has been abandoned."  Tanglewood Homes Ass'n v. Henke, 728 S.W.2d 39, 43 (Tex.App.1987).  In simplest terms, this test is met when the average person, upon inspection of a subdivision and knowing of a certain restriction, will readily observe sufficient violations so that he or she will logically infer that the property owners neither adhere to nor enforce the restriction.

In applying this test, courts consider the "'number, nature, and severity of the then existing violation[s], any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant.'"  Id. at 43-44 (quoting New Jerusalem Baptist Church, Inc. v. City of Houston, 598 S.W.2d 666, 669 (Tex.App.1980)).  See also Lakeshore Property Owners Ass'n v. Delatte, 579 So.2d 1039, 1043 (La.App.) ("abandonment of a restriction depends upon the character, materiality and number of violations and their proximity to the objecting residents"), cert. denied, 586 So.2d 560 (La. 1991); Tompkins v. Buttrum Constr. Co., 99 Nev. 142, 659 P.2d 865, 867 (1983) (abandonment of restriction will be found if "general and substantial violations" existed).

To maximize the benefits of the essentially objective quality of this test, courts applying it should first analyze violations as to their number, nature, and severity.  If these elements alone are sufficient to lead the average person to believe the covenant has been abandoned, it is not necessary to go further.  However, if abandonment is still in doubt, courts should then consider the other two factors — namely, prior enforcement efforts and possible realization of benefits — to resolve the abandonment question.

2.  Analysis

We now consider whether, employing the above test, the existing violations of the Maple Hills roofing covenant demonstrate that it has been abandoned.

A.  Number, nature, and severity of violation

We may readily ascertain the actual "number, nature, and severity" of violations of the roofing materials covenant by merely looking at the undisputed facts.  Twenty-three out of eighty-one houses in Maple Hills have roofs which do not conform to the wood shingle restriction.  A plain reading of the covenant shows that permitted exterior roofing materials are limited to wood shingles only.  See Gosnay v. Big Sky Owners Ass'n, 205 Mont. 221, 666 P.2d 1247, 1250 (1983) 654*654 (interpreting covenants according to plain language contained therein).  Fink incorrectly attempts to characterize the houses with tile roofs that were erroneously approved by the Committee as somehow less in violation of the covenant than the houses with fiberglass/asphalt shingles that were not approved by the Committee.  The circumstances under which property owners obtained approval for tile roofing materials cannot mask the simple fact that there are twenty-three houses, a substantial number of the total houses in the subdivision, not conforming with the restrictive covenant.[5]

Accordingly, violations of the wood shingle restrictive covenant are sufficiently widespread that it must be concluded, as a matter of law, that the restriction has been abandoned and is unenforceable.

B. Other factors: enforcement and benefits

Because objective analysis of the number and nature of the violations demonstrates the covenant has been abandoned, we need not extend our inquiry to the remaining factors discussed above.  We briefly touch upon them only to aid future judicial application of the test adopted in this opinion.

First, the property owners' overall record of enforcement of the covenant is problematic.  While there has been a fairly consistent pattern of enforcement since 1985, there was little or no enforcement between 1978 and 1985.  Indeed, by 1985 only eight of the twenty-nine existing houses conformed with the wood shingle requirement.  Fink attempts to minimize this fact by claiming the Committee inadvertently used a copy of the Agreement that appeared to allow houses with tile roofs.  As we see it, however, the Committee's unquestioning reliance on a handwritten note of unknown origin only underscores the laxity of the Committee's enforcement approach during the 1978-85 period.

Next, we consider whether, notwithstanding the existing violations, it is possible to realize the benefits intended by the covenant.  In so doing,