abandonment of covenant
A person challenging the enforcement of a covenant by an HOA may argue that the covenant has been abandoned because no one adheres to it and it isn't enforced. Because the covenant has been abandoned, the person argues, he or she does not need to adhere to it.
The test to determine “abandonment” of a restrictive covenant requires the party challenging enforcement to prove existing violations are so great as to lead the mind of an average person to reasonably conclude that the restriction in question has been abandoned. This test is met when an average person, upon inspection of subdivision and knowing certain restrictions, will readily observe sufficient violations so that she will logically infer that property owners neither adhere to nor enforce the restriction.
The Utah Supreme Court stated, for determining whether the owners had abandoned a covenant, the court “must examine: (1) the number, nature and severity of the then existing violations; (2) any prior act of enforcement of the restriction; and (3) whether it is still possible to realize to a substantial degree the benefits intended through the covenant.” Swenson v. Erickson, 998 P.2d 807 at 813, (UT 2000)
Regarding #2, the Utah Court of Appeals held a record of enforcement was problematic where, even though the architectural committee enforced consistently from 1985 to the present time in the case, enforcement was lax during the 1978-1985 period where, by 1985, only 8 of 29 houses conformed to the wood shingle requirement at issue. Fink v. Miller, 896 P.2d 649 (Ut App 1995).
The court in Swenson elaborated on the test to determine if there is an abandonment:
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(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)