Fink v. Miller
Court of Appeals of Utah
896 P.2d 649 (1995)
Fink (plaintiff) and the Millers (defendants) owned lots in a subdivision governed by covenants requiring wood-shingle roofs, subject to committee approval. Before 1985, the committee mistakenly approved tile and fiberglass/asphalt-shingle roofs based on an uncorrected handwritten note suggesting alternative materials were allowed, resulting in 21 non-conforming homes by the time the mistake was discovered; the committee then began enforcing the wood-shingle requirement strictly. When the Millers sought approval for fiberglass shingles in 1990, the committee denied it, but the Millers installed them anyway. Fink sued for an injunction; the trial court granted summary judgment for the Millers, and Fink appealed.
Whether a covenant is abandoned when readily observable violations are sufficient in number, nature, and severity that an average person would conclude property owners neither adhere to nor enforce it.