[Judiciarycommittee1] FW: Enforcing covenants: "Use it or lose it"

Tue May 6 14:14:09 PDT 2025

Literally, George! And I don’t know of another case like this one in WA. Would create some havoc potentially!

Erin M. Stines | Underwriting Counsel – Pacific Northwest
P: 253.264.7819
wltic.com<https://wltic.com/>

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From: George <execdirector at washingtonlandtitle.com>
Sent: Tuesday, May 6, 2025 8:58 AM
To: Erin Stines <erin.stines at wltic.com>; judiciarycommittee1-bounces at washingtonlandtitle.com; 1 WLTA Judiciary Committee (ListServ) <judiciarycommittee1 at washingtonlandtitle.com>
Subject: Re: [Judiciarycommittee1] FW: Enforcing covenants: "Use it or lose it"

And imagine a decision that decided just one or a few, but not all, provisions in a CC&R document were not enforceable, ͏‌͏
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And imagine a decision that decided just one or a few, but not all, provisions in a CC&R document were not enforceable, particularly if it was just silent on the remaining issues.

Makes Underwriting a comprehensive endorsement an adventure.

Are there no similar cases in Washington?

George
Sent from my mobile phone 206-437-5869

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From: Judiciarycommittee1 <judiciarycommittee1-bounces at washingtonlandtitle.com<mailto:judiciarycommittee1-bounces at washingtonlandtitle.com>> on behalf of Erin Stines <erin.stines at wltic.com<mailto:erin.stines at wltic.com>>
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Subject: [Judiciarycommittee1] FW: Enforcing covenants: "Use it or lose it"

I haven’t seen a case that has caught my eye in a while but this is of interest to me! HOA was lax on enforcing its covenants and loses the right to enforce the covenants – declared null and void! Yikes.

Erin M. Stines | Underwriting Counsel – Pacific Northwest
P: 253.264.7819
wltic.com<https://links.us1.defend.egress.com/Warning?crId=681a31922809d06f0a29549a&Domain=wltic.com&Threat=eNpzrShJLcpLzAEADmkDRA%3D%3D&Lang=en&Base64Url=eNodyttuREAAANC_8WbtbimaTBpLTdpG7UXcXiYMwzCDuvP1zfb5nHIcu-FNkqaeZTnJmyE_dH3bkq6lzXjALZfm8xPfJ_BfxRcDoYWNFD8RCRmwFgcmNwGDfILxMOLEsxibKf_40VK1Cvvl1yXirBjIzLqi8QmljiP0wLT1e5IGvq1oqn2Su3VYdr5r-LobG-mqY4h0k0Mol1EtcKDxi-FX5y9dKXPRYrs4z6dKTNJPlW41hvd0t4tQbiPib74YtHJgf2_yw4uTcKdyAZEwAORa1YXpFQ9ee166pqf0Fje39UZDNYqhsjLn-IB6HfiOkIM_Pi5gYg%3D%3D&@OriginalLink=urldefense.proofpoint.com>

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From: DIRT - Real Estate Lawyers Listserv <DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>> On Behalf Of Whitman, Dale
Sent: Sunday, May 4, 2025 9:49 AM
To: DIRT at LISTSERV.UMKC.EDU<mailto:DIRT at LISTSERV.UMKC.EDU>
Subject: [DIRT] Enforcing covenants: "Use it or lose it"

HOA's are often quite lax in enforcing covenants against their own members. What they may not realize is that failure to enforce covenants consistently may result in a situation in which the covenants become unenforceable. A court may decide that the widespread failure to enforce the covenants amounts to a waiver of the covenants or acquiescence in the violations. Here's the case, as summarized by the CAI Law Reporter, that illustrates the point. It's a good idea to remind your HOA clients that if they expect to continue to enforce their covenants they need to be consistent about it. – Dale

Covenants Enforcement: The Supreme Court of South Dakota held that where there have been widespread violations of restrictive covenants that have gone unenforced, they may be deemed void and unenforceable. 

  1.  Hood v. Straatmeyer, No. 30180 (S.D. Mar. 5, 2025) 
  2.
Shadowland Ranch (subdivision) is a subdivision in Meade County, S.D. Clyde and Nancy Straatmeyer (the Straatmeyers) purchased a lot in the subdivision. 
The subdivision was subject to a set of restrictive covenants (covenants) recorded in 1976. In part, these covenants prohibited further subdivision of the lots and required that there be only one single-family dwelling per lot with no larger than a three-car garage. 
In 2020, the owner of Lot 6 successfully applied to the city to subdivide Lot 6 into Lot 6A and 6B. Thereafter, the Straatmeyers purchased Lot 6B. They immediately hired a contractor who began the process of digging and pouring the foundation for a home with an attached three-car garage. After seeing the construction begin, the Straatmeyers' neighbors sent them a letter stating their project violated the covenants. 

Eighteen of those neighbors (the neighbors) filed suit against the Straatmeyers. They sought a determination from the court stating the covenants were valid and the lot subdivision and construction were violations of the covenants. The suit also sought a court order directing the Straatmeyers to remove the construction from their lot. The Straatmeyers responded asserting several defenses and added a counterclaim that the neighbors had for years allowed several activities constituting violations of the covenants. The Straatmeyers requested the trial court rule the covenants null and void since selective enforcement of the covenants would be inequitable. The Straatmeyers asked the trial court to order the neighbors to bring their properties into compliance with the covenants.
The trial court found several lot owners violated several of the covenants' restrictions including having larger than three-car garages and building structures within a certain distance of the lot boundaries. The trial court ultimately concluded it would be inequitable and unjust to allow homeowners within a subdivision to selectively enforce the covenants against some property owners while turning a blind eye to violations by other homeowners particularly since the covenants were never previously enforced despite numerous violations. The trial court declared the covenants were null and void. Accordingly, the trial court ruled the Straatmeyers were not in violation of the covenants since the covenants were not enforceable. The neighbors appealed. 
On appeal, the neighbors contested the trial court's findings that there were other covenants violations. The appeals court agreed with the trial court finding the trial court had not clearly erred in finding multiple ongoing violations of the covenants by the neighbors. Therefore, the appeals court did not reverse the determinations of the trial court.

The neighbors then argued the trial court abused its equitable discretion when it declared the covenants to be null and void. The right to enforce a restrictive covenant may be lost by waiver or acquiescence of the violation of that covenant. To support such a defense, there must be a showing of a clear, unequivocal and decisive act or acts showing an intention to relinquish the existing right. The appeals court looked to the multiple covenants violations by the neighbors, and to the fact that there was no record that anyone attempted to enforce the covenants since they were recorded in 1976 (prior to the filing of this case).

Based on that review, the appeals court found the trial court had not erred in finding the inactions of the neighbors and failure to enforce the covenants in the past were enough to constitute an acquiescence to the violation of the covenants and therefore a forfeiture of the right to enforce said covenants. It further ruled it was within the equitable power of a trial court to declare a covenant void upon showing that enforcement of the covenant would be inequitable considering widespread, unchallenged violations that undermine the purpose of the covenant. 
Accordingly, the appeals court affirmed the trial court's determinations. 

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