B.B.P. Corporation v. Carroll

A 95-lot subdivision was governed by restrictive covenants including Covenant Five, requiring lot owners to cut all poplar, cottonwood, and aspen trees on their property, and Covenant Six, requiring downhill owners to cut trees obstructing an uphill owner's view upon request; the covenants could officially be modified only by agreement between BBP's (plaintiff) board of trustees and at least three-quarters of all lot owners. Strict compliance with Covenant Five proved nearly impossible because those tree species reseed and regrow quickly, and no lot, including BBP's own president's, fully complied, while lot owners generally did comply with Covenant Six whenever requests were actually made. Shortly before a newly elected board voted unanimously, but without the required three-quarters owner agreement, to repeal both covenants, BBP had already sued several owners, including Carroll (defendant), to enforce them; Carroll moved for summary judgment, arguing the covenants were either officially repealed or informally abandoned through widespread noncompliance. The trial court granted Carroll's motion, and BBP appealed.