Saturday, February 04, 2006

Provision of restrictive covenants that allows amendment in whole or part by majority vote permits termination of covenants

Swenson v. Erickson, 2006 UT App 34

Erikson wanted to build a shed on his property in a Sandy subdivision (Quail Point). Swenson sued to block construction because the structure violated the subdivision’s restrictive covenants. So Erikson and a majority of the residents voted to terminate the covenants. Swenson claimed the covenants did not permit termination, only amendment. The court of appeals interpreted the following provision to mean that the covenants could be terminated:
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 1994, at which time said covenants shall be automatically extended for successive periods of 10 years unless by vote of a majority of the then owners of the building sites covered by these covenants it is agreed to change said covenants in whole or part.
I also liked this quote from Dansie v. Hi-Country Estates Homeowners Ass'n, 1999 UT 62,¶14, 987 P.2d 30:
Restrictive covenants are not favored in the law and are strictly construed in favor of the free and unrestricted use of property.
If you ask me, when it comes to restrictive covenants, the less restrictive, the better.


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