Property II, Pages 646–651

Fink v. Miller

Utah Court of Appeals, 1995


Plaintiff and defendant bought plots in the same subdivision. One of the covenants required wood shingles on all roofs. The Community Development Committee also had to approve all improvements or alterations to existing structures. Sometime, the committee received a copy of the agreement with a handwritten modification allowing bar tile roofs. Because of this, the committee approved requests for tile roofs until 1985. During this time, 8 houses were built with wood shingle roofs, while 21 were built with other material, six without the committee's approval. In 1985 however, the committee learned that the covenants had not actually be amended and thereafter resumed disapproving roofs without wood shingles.

In 1990, defendants built a wooden shingle roof. In 1991, they request approval to change it to a fiberglass shingle roof, which the committee denied. Defendant installed the fiberglass shingle roof anyway, and plaintiff sued to prevent their installation.

Procedural History:

Trial court denied a permanent injunction, finding that 23 of 81 roofs did not have wood shingles. The court concluded that the covenants still validly restricted the color and quality of materials, but that the committee had to approve any roofing material of adequate quality that blend "harmoniously with the current neighborhood."


Did the covenant restrict roofing materials to wood shingles?


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Instead, a more appropriate test to determine abandonment of such a covenant requires the party seeking 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." 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.'"

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.


  • A substantial number of houses did not have the wood shingling, alone demonstrating that the covenant had been abandoned.

  • The covenant was not enforced for seven years, at which time a minority of houses built complied with it.

  • The desired benefit of uniformity will not be furthered by requiring future building to use wood shingles after allowing types for so long. Other elements can still promote uniformity.

  • While there were disputed facts, none were material.


The covenant did not restrict roofing materials as it had been abandoned. Affirmed.