Waiver usually involves a failure to object to other violations of the same or similar covenants such that it would be unfair to allow the claimant to enforce the covenant against the current violation. See Restatement Third, Property (Servitudes) § 8.3 Com. f.
The Utah Supreme Court said, "A waiver is the intentional relinquishment of a known right. To constitute a waiver, there must be an existing right, benefit, or advantage; a knowledge of its existence and an intention to relinquish it. It must be distinctly made, although it may be express or implied." Rowley v. Marrcrest Homeowners' Ass'n, 656 P.2d 414 at 418 (Utah 1982).
Fears of waiver have sometimes led associations to enforce covenants or rules against minor infractions that are otherwise innocuous. Generally, these fears are groundless if the waiver doctrine is properly applied. Waiver of the right to enforce against one violation does not waive the right to enforce against other violations that are different, such as in degree or kind. Violation of the duty of
Members Area. This resource is available to members. Join us by subscribing today!
Statutes and Cases:
(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)