Property Law: Abandoning a Covenant

An individual may waive her right to enforce a covenant, but of course she can’t waive other benefited parties’ rights to enforce the covenant. However, collectively, the group of benefited owners may terminate a uniform covenant by abandoning it.

A uniform covenant is abandoned when existing violations of the covenant would lead a reasonable person to believe that the covenant has been abandoned and is no longer enforceable. To determine whether a covenant has been abandoned, courts consider the number, nature, and seriousness of existing violations as well as whether owners have tried to enforce the covenant in the past.

As with the changed circumstances doctrine, courts also may consider whether it’s still possible for the owners to enjoy the benefits of the covenant despite the existing violations.

The same facts may be relevant to the abandonment defense and the changed circumstances defense, and courts sometimes seem to treat them as the same thing. But the two defenses are based on two different principles.

The changed circumstances principle is that the covenant can’t achieve its purpose anymore. Maybe a court figures that it won’t enforce a restraint on the use of property that won’t do any good but merely allows one person to harass another person, or maybe the court figures that the original parties must not have intended the covenant to continue when it was no longer beneficial.

The abandonment principle, on the other hand, is that the burdened party reasonably relies on the impression that the covenant is no longer enforceable. Even though the covenant may be recorded, the burdened party actually didn’t have notice that the covenant still burdened the property, because circumstances indicated that the owners had stopped enforcing the covenant.

So with abandonment, the emphasis is on what the burdened party would reasonably perceive, not the benefit the other owners would receive.

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