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.