Are Old Restrictive Covenants (CC&Rs) Still Enforceable?
Property owners sometimes assume they can do (or should be able to do) whatever they want with their land. Of course, the world is not that simple; living in a civilized society involves an interconnectedness which necessarily means that some land uses are bound to affect those around us. Stemming from that recognition are a host of restrictions on what people can do with their land. We can find such restrictions in governmental regulation at all levels of government, in the common law as established by court precedents, and in private agreements between landowners. A restrictive covenant is a clause in a private agreement between landowners, which restricts or requires various activities or uses of one or more parcels of land. Typically, the original parties to the restrictive covenants record them with the county auditor for the county in which the property is located, and the covenants run with the land, binding future owners to their terms. A commonly used synonym for restrictive covenants when used by homeowner’s associations or in planned subdivisions is the acronym “CC&Rs,” which stands for “covenants, conditions, and restrictions.”
Typical examples of restrictive covenants include, without limitation: (a) building height restrictions; (b) building size restrictions; (c) requiring or forbidding certain architectural styles; (d) requiring yard upkeep; (e) requiring approval of landscaping plans; (f) requiring setbacks for structures; (g) forbidding temporary dwellings; (h) requiring construction within a certain period of time after purchase; etc. The possibilities are endless.
Restrictive covenants used to face greater scrutiny from Washington courts; until about 30 years or so ago, courts followed a rule of interpreting restrictive covenants strictly and narrowly in favor of allowing the “free use of land.” But starting around the 1990s, the Washington Supreme Court explicitly recognized the value of restrictive covenants as an important land use planning tool for the protection of local communities, and the Court decided that a new rule should apply to interpret restrictive covenants by ascertaining the drafter’s intent to “protect the homeowners’ collective interests.” Ascertaining that intent can involve resorting to the ordinary meaning of words, looking at surrounding circumstances, or even looking at direct evidence of what the drafter(s) meant.
But do restrictive covenants remain binding forever, or can they be terminated or become unenforceable with time? Some restrictive covenants have sunset provisions by their own terms, meaning they automatically end after a certain period of time. More frequently, the restrictive covenants have no end date, and in theory last forever until the owners of the affected parcels decide to terminate them by mutual agreement.
Frequently, property owners ignore restrictive covenants (consciously or unconsciously). When this becomes consistent and widespread, homeowners in the community can begin assuming that the covenant no longer matters and that there exists a tacit understanding between all concerned no one cares to enforce it. In many cases, this stems from changed circumstances in the community- the current owners no longer see the covenant as important to protecting the enjoyment of their property and their property values. When this happens, it can be unfair to suddenly begin enforcing the covenant. For that reason, Washington courts recognize “abandonment” as an equitable defense to enforcement of a restrictive covenant. To show abandonment, the party defending against enforcement must show that violations by other residents have eroded the general plan to make enforcing the covenant inequitable. Violations must be material to the overall purpose of the covenant, and minor violations are insufficient to find abandonment. The covenant must have been “habitually and substantially violated.” Evidence of a single violation is insufficient. Even though abandonment is considered an equitable defense, the question of whether a covenant has been abandoned is a question of fact. This is important because it may be difficult to have a court decide on the question of abandonment on summary judgment. (For more information on summary judgment, see here: https://beresfordlaw.com/webinar-summary-judgment-can-you-win-your-case-without-trial/)
It is critical to note that proving the abandonment of a single covenant or several covenants does not necessarily mean that all remaining covenants are abandoned; courts may analyze each covenant individually even if a group of them are all found in the same document. This is particularly true where the provisions of the document creating the covenants contains a severability clause (i.e., that the unenforceability of one covenant does not make the others unenforceable).
The lawyers at Beresford Booth have a wealth of experience in handling disputes involving neighbors, restrictive covenants, and homeowner associations. If you have a concern or dispute involving the enforcement of restrictive covenants, we would be happy to assist you.
To learn more about Are Old Restrictive Covenants (CC&Rs) Still Enforceable?, please do not hesitate to contact us at info@beresfordlaw.com or by phone (425) 776-4100 for assistance.