“In addition, it is our opinion that the enforcement of one covenant or the failure to enforce that covenant has no bearing on the validity of a different covenant, in the event that both are contained in the same deed. Overzealous enforcement is costly to the community both financially and because it tends to be socially divisive.’ “The rationale for placing such a significant burden on a defendant claiming waiver is set forth in Restatement (Third) of Property: Servitudes, 8.3, comment f at 502 (2000), which explains that doing so ‘is particularly important in common-interest communities and other real estate developments with associations, because the association should not be impelled to engage in overzealous covenant enforcement fearing possible waiver of future enforcement rights. Alternatively, waiver can be demonstrated when changes to the area caused by unenforcement become ‘so radical and permanent as to render perpetuation of the restriction … plainly unjust because its original purpose can no longer be accomplished.’ Duffy, 121 R.I. To establish the defense of waiver, in our opinion, a defendant must prove that a plaintiff has waived the covenant through ‘substantial and general non-compliance.’ Kalenka v. “In this case, the Mignaccas argued that plaintiffs had waived the right to enforce covenant 8. This burden may be met by showing that the covenant has been so arbitrarily or laxly enforced that its present enforcement is barred by waiver, estoppel or laches. Under these authorities, “The assertion that a covenant should not be enforced because of its previous arbitrary or under-enforcement is an affirmative defense, so when the Mignaccas raised it at trial, they bore the burden of proof. In ruling on this defense, the Supreme Court looked to “leading authorities and the law of other jurisdictions for guidance in making our determination.” The trial justice further reported that the DelFarno family had kept a miniature horse similar to the Mignaccas’ horse on their property, a fact that was known to at least one board member of the association, Laurie Biern (Biern).” He also noted that Rena Dressler (Dressler), the president of the association and one of the plaintiffs in the case, kept a snake and parrots in her home, in apparent contravention of covenant 8’s allowing only cats and dogs. The trial judge agreed, finding that “covenant 8 was enforced arbitrarily and therefore should not be enforced in this case.”Īs the Rhode Island Supreme Court explained: “Based on testimony and his viewing, the justice referred to numerous infractions of covenants in addition to those barred by covenant 8 - for example, the presence of freestanding garages, sheds and cabanas in Ridgewood Estates. The Mignaccas argued that the association should be barred from enforcing these restrictions because it permitted other homeowners to violate the covenants. Covenant 8 also prohibits kennels or other structures for animals. The Ridgewood HOA objected, arguing that a restrictive covenant governing the community prohibit livestock, poultry and other animals (except that each homeowner was permitted to have up to two dogs or cats). With a 4 acre lot in Ridgewood Estates, the Mignaccas wanted to build a shelter for Sonny in the form of a 10-by-12-foot stable on their lot. 14).ĭavid and Kathy Mignacca bought a miniature horse. The question of law for the Rhode Island Supreme Court was, When does selective enforcement of restrictive covenants provide a defense? Ridgewood Homeowners Association v. They can often point to other situations where enforcement of the covenants has been lax. When the homeowners association in a housing development files a lawsuit seeking to enforce a restrictive covenant, it isn’t unusual for the defendants to feel they are being unfairly singled out for harsh treatment.
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