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Mountain Park Homeowners v. Tydings, 125 Wn.2d 337, 883 P.2d
1383 (1994).
[No. 61475-0. En Banc. November 22, 1994.]
MOUNTAIN PARK HOMEOWNERS ASSOCIATION, INC., Respondent,
v. PADDY L. TYDINGS,
ET AL, Petitioners.
[1] Judgment - Summary Judgment - Review - Role of Appellate
Court. When reviewing a summary judgment, an appellate court
engages in the same inquiry as the trial court. The court applies the
standard of CR 56(c) after considering all the facts and the reasonable
inferences therefrom most favorably toward the nonmoving party.
Questions of law are reviewed de novo.
[2] Covenants - Enforcement - Right of Property Owners. Property
owners have a right in equity to enforce restrictive covenants.
[3] Covenants - Enforcement - Abandonment - Test. Abandonment of a
restrictive covenant occurs only when prior violations by other
residents have so eroded the general plan that the enforcement of the
covenant would be useless and inequitable. The violations must be
multiple, more than minor, and material to the overall purpose of the
covenant.
338 MT. PARK HOMEOWNERS v. TYDINGS Nov. 1994
125 Wn.2d 337
[4] Appeal - Disposition of Cause - Affirmance on Other Grounds -
In General. An appellate court may uphold a judgment based on any
theory established by the pleadings and supported by the proof.
[5] Covenants - Construction - Intent of Parties - Considered as a
Whole - Extrinsic Evidence. Restrictive covenants are interpreted to
carry out the intent of the parties as evidenced by the language of the
document in its entirety. Only if the language is unclear and ambiguous
may the court look to the surrounding circumstances to ascertain the
parties' intent.
[6] Covenants - Enforcement - Abandonment - Violations of Different
Covenants - Severability Clause - Effect. When a restrictive covenants
agreement provides that the invalidation of any covenant shall not
affect the effectiveness of the remaining covenants, violations of one
restrictive covenant have no effect on the enforceability of a different
restrictive covenant.
Nature of Action: A homeowners association sought to
enforce a restrictive covenant against exterior antennas. The
defendants were residents of the subdivision who had installed an
exterior satellite receiving dish on their property.
Superior Court: The Superior Court for Pierce County,
No. 88-2-08535-3, E. Albert Morrison, J., on August 23, 1991, entered
a summary judgment in favor of the defendants.
Court of Appeals: The court at 72 Wn. App. 139 reversed
the judgment, holding that the covenant was enforceable.
Supreme Court: Holding that, under the terms of the
restrictive covenants agreement, the homeowners association had not
abandoned or selectively enforced the covenant, the court affirms the
decision of the Court of Appeals.
Robert K. Ricketts, for petitioners.
Brian L. McCoy, for respondent.
DOLLIVER
DOLLIVER, J. - Defendants Paddy L. Tydings and Richard
Tydings seek reversal of a Court of Appeals decision that reversed and
remanded a Superior Court's order. of summary dismissal with
prejudice. In the alternative, Defendants request remand to the trial
court with instructions. Defendants assign error to the Court of Appeals
ruling that
Nov. 1994 MT. PARK HOMEOWNERS v. TYDINGS 339
125 Wn.2d 337
violations of other enumerated protective covenants in a subdivision
were irrelevant to whether a covenant against antennas has been
abandoned or not enforced uniformly by Plaintiff Mountain Park
Homeowners Association. Defendants also claim that Plaintiff
procedurally forfeited its right to challenge the trial court's original
order. We affirm the decision of the Court of Appeals.
Defendants are resident homeowners in Mountain Park, a 244-unit
planned community in Pierce County, Washington. Purchasers of
property in the subdivision agree to be bound by the Declaration of
Covenants, Conditions, and Restrictions for Mountain Park (CCR).
CCR art. 14, SS 1, at 21. Plaintiff Mountain Park Homeowners
Association (Association) is a nonprofit corporation established by the
CCR whose membership consists of homeowners in the subdivision.
CCR art. 4, SS 1. The Association is empowered to enforce the CCR
through the Architectural Control Committee (ACC). CCR art. 7, SS 2;
art. 14, SS 2.
The CCR enumerates certain protective covenants, including a
prohibition on antennas:
No exposed or exterior radio or television transmission or receiving
antennas shall be erected, placed, or maintained on any part of such
premises except as approved by the ACC prior to installation or
construction.
CCR art. 9, SS 17. In 1988, Defendants installed an exterior
satellite receiving dish on their property. Acting on a complaint by
another resident, Plaintiff notified Defendants by letter that they were in
violation of the protective covenant against antennas and requested
removal of the dish. Defendants refused to remove the dish and admit
its continued presence on their property.
In October 1988, Plaintiff filed a complaint against Defendants seeking
to enforce the covenant. At the same time, the Association brought a
second suit to enforce the same antenna covenant against another
homeowner's satellite dish; the trial court in that case granted summary
judgment for the Association. In February 1989, the trial court in the
present case denied Plaintiff's motion for summary judgment and
ordered:
340 MT. PARK HOMEOWNERS v. TYDINGS Nov. 1994
125 Wn.2d 337
[I]f all covenants and/or restrictions contained in the Mountain
Park Declaration of Covenants, Conditions and Restrictions are not
uniformly enforced this action found to be discriminatory will be
dismissed.
Pl.'s Clerk's Papers, at 85.
Shortly thereafter, Plaintiff determined that 7 to 12 homeowners were in
violation of various covenants, including stored disabled vehicles,
campers, boats, building materials, and a traditional television antenna.
Plaintiff notified these violators that continued noncompliance with the
covenants would result in its seeking judicial enforcement.
Nevertheless, in June 1989, the trial court denied Plaintiff's motion for
reconsideration after deciding that the uniformity of enforcement
remained in dispute. Meanwhile, Defendant Richard Tydings served as
chairman of the ACC from 1989 to 1990.
In 1991, Defendants moved to dismiss the complaint by arguing that
Plaintiff continued to fail to enforce the CCR against other violators.
The trial court denied Defendants' motion to dismiss, deciding that a
genuine issue of material fact regarding uniform enforcement
persisted. Upon Defendants' motion for reconsideration, the court
dismissed Plaintiff's complaint with prejudice. The court held the
enforcement of the antenna covenant against Defendants was
discriminatory as a matter of law because Plaintiff
has not uniformly enforced or attempted uniform enforcement of the
[CCR] and has failed to take any action against the numerous
violations of the [CCR] except for the proceedings against defendant
herein . . ..
Order Dismissing Pl.'s Compl. With Prejudice, at 3. In
addition, the court held the covenant was an unreasonable restraint on
the use of property. The trial court denied Plaintiff's motion for
reconsideration.
In December 1993, the Court of Appeals reversed the trial court's
summary dismissal and remanded. Mountain Park Homeowners Ass'n
v. Tydings, 72 Wn. App. 139, 864 P.2d 392 (1993). The court held as a
matter of law that Plaintiff had not abandoned or selectively enforced
the covenant
Nov. 1994 MT. PARK HOMEOWNERS v. TYDINGS 341
125 Wn.2d 337
against antennas and thus dismissal for Defendants was improper.
Mountain Park, 72 Wn. App. at 148. The court also held the antenna
covenant did not constitute an unreasonable restraint on the use of
property. Mountain Park, 72 Wn. App. at 147. The Court of Appeals
denied Defendants' motion for reconsideration. This court granted
Defendants' petition for discretionary review solely on the issue of
abandonment or selective enforcement.
We first address Defendants' procedural claim. Defendants submit that
by failing to assign error to the trial court's original 1989 order, Plaintiff
waived its right to assert error to the Court of Appeals on the final 1991
order. We conclude that Plaintiff's assignment of error was sufficient.
As required by RAP 10.3(g), Plaintiff's statement of issues in its Brief to
the Court of Appeals clearly disclosed its assignment of error to the
entire ruling of the trial court; this ruling incorporated the 1989
interlocutory order. Review by the Court of Appeals was therefore
proper.
[1] We turn next to the heart of Defendants' petition: the rejection by
the Court of Appeals of their defense to enforcement. When reviewing
an order for summary judgment, the appellate court engages in the
same inquiry as the trial court. Syrovy v. Alpine Resources, Inc., 122
Wn.2d 544, 548 n.3, 859 P.2d 51 (1993). This court will affirm summary
judgment if no genuine issue of any material fact exists and the moving
party is entitled to judgment as a matter of law. CR 56(c). All facts and
reasonable inferences are considered in the light most favorable to the
nonmoving party, Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243
(1992), and all questions of law are reviewed de novo, Syrovy, 122
Wn.2d at 548 n.3.
[2] Property owners have a right in equity to enforce restrictive
covenants. See, e.g., Mains Farm Homeowners Ass'n v. Worthington,
121 Wn.2d 810, 815, 854 P.2d 1072 (1993); Ronberg v. Smith, 132
Wash. 345, 349, 232 P. 283 (1925). A number of equitable defenses
are available to preclude enforcement of a covenant: merger, release,
unclean hands, acquiescence, abandonment, laches, estoppel, and
changed neighborhood
342 MT. PARK HOMEOWNERS v. TYDINGS Nov. 1994
125 Wn.2d 337
conditions. St. Luke's Evangelical Lutheran Church v. Hales, 13 Wn.
App. 483, 488, 534 P.2d 1379, review denied, 86 Wn.2d 1003 (1975);
5 Richard R. Powell, Real Property 679[1], [2] (rev. ed. 1991); see
Tindolph v. Schoenfeld Bros., 157 Wash. 605, 608, 611, 289 P. 530
(1930). There is no question here that the antenna covenant applies to
satellite dishes and that Defendants are in violation. Mountain Park, 72
Wn. App. at 142 & n.3. Thus, Defendants can only avoid enforcement
with facts supporting a viable defense.
[3] The trial court accepted evidence of violations of other covenants to
support a defense that the antenna covenant was abandoned or
enforced selectively. The defense of abandonment requires evidence
that prior violations by other residents have so eroded the general plan
as to make enforcement useless and inequitable. Mt. Baker Park Club,
Inc. v. Colcock, 45 Wn.2d 467, 471, 275 P.2d 733 (1954); Ronberg,
132 Wash. at 352-53.
"[I]f a covenant which applies to an entire tract has been habitually and
substantially violated so as to create an impression that it has been
abandoned, equity will not enforce the covenant."
White v. Wilhelm, 34 Wn. App. 763, 769, 665 P.2d 407 (quoting
Sandy Point Imp. Co. v. Huber, 26 Wn. App. 317, 319, 613 P.2d 160
(1980)), review denied, 100 Wn.2d 1025 (1983); see Mt. Baker Park
Club, 45 Wn.2d at 471 (citing Ronberg, 132 Wash. at 350); Hagemann
v. Worth, 56 Wn. App. 85, 89, 782 P.2d 1072 (1989). Violations must
be material to the overall purpose of the covenant, and minor violations
are insufficient to find abandonment. Reading v. Keller, 67 Wn.2d 86,
89, 406 P.2d 634 (1965); Tindolph, 157 Wash. at 611; Johnson v. Mt.
Baker Park Presbyterian Church, 113 Wash. 458, 472, 194 P. 536
(1920). This court has refused to find abandonment from evidence of a
single violation. Reading, 67 Wn.2d at 90.
Washington courts have not directly addressed the relevance of a
violation of one type of covenant to the enforcement of another. The
covenants in prior cases were broad, generally prohibiting
nonresidential use and establishing
Nov. 1994 MT. PARK HOMEOWNERS v. TYDINGS 343
125 Wn.2d 337
setback or height restrictions. See, e.g., Ronberg, 132 Wash. at 346;
Johnson, 113 Wash. at 460. As a result, analysis has been limited to
whether violations of the same covenant amount to abandonment. See
Mt. Baker Park Club, 45 Wn.2d at 468, 472; White, 34 Wn. App. at 769,
771. The case at hand is made unique by the nature of the CCR;
instead of a single broad covenant, the CCR catalogs specific
prohibitions in separate covenants.
The Court of Appeals repudiated the trial court's acceptance of a
theory of abandonment based on violations of other covenants. The
court held that a defense of abandonment or selective enforcement of
the antenna covenant could only be supported by evidence of
violations of that covenant:
Violations of other covenants, e.g., violations involving stored disabled
vehicles, campers, boats, and building materials, are not relevant to
whether the covenant against antennas has been abandoned or not
uniformly enforced.
Mountain Park, 72 Wn. App. at 148. The court went on to
note that Plaintiff had enforced the three violations of the antenna
covenant in the record by court action or voluntary compliance.
Mountain Park, 72 Wn. App. at 148. Because Defendants presented no
evidence of failure to enforce the antenna covenant, as a matter of law
their defense failed.
Defendants dispute the ruling of the Court of Appeals that violations of
other covenants are irrelevant to a defense against enforcement of the
antenna covenant. They argue this ruling conflicts with three cases of
abandonment, Mt. Baker Park Club, 45 Wn.2d at 471; Hagemann, 56
Wn. App. at 89; and White, 34 Wn. App. at 769. Defendants urge the
court to adopt the analysis of other states apparently willing to consider
violations of other independent covenants as relevant to abandonment.
See Swaggerty v. Petersen, 280 Or. 739, 746, 572 P.2d 1309, 1314
(1977); Condos v. Home Dev. Co., 77 Ariz. 129, 134, 267 P.2d 1069,
1072 (1954); see also 2 Thomas E. Atkinson et al., American Law of
Property SS 9.38 (A. James Casner ed. in chief, 1952); contra
Tompkins v. Buttrum Constr. Co., 99 Nev. 142, 145, 659 P.2d 865, 867
(1983); Gladstone v. Gregory, 95 Nev. 474, 479, 596 P.2d 491,
344 MT. PARK HOMEOWNERS v. TYDINGS Nov. 1994
125 Wn.2d 337
494 (1979); Dauphin Island Property Owners Ass'n v. Kuppersmith,
371 So. 2d 31, 34 (Ala. 1979).
[4] Despite Defendants' contentions, the facts of the present case do
not necessitate our reaching the legal issue of the viability of a defense
based on violations of other independent covenants. We may sustain a
lower court's judgment upon any theory established by the pleadings
and supported by the proof. Wendle v. Farrow, 102 Wn.2d 380, 382,
686 P.2d 480 (1984). Our review of the uncontroverted evidence in the
record convinces us that the terms of the CCR itself bar a defense
based on violations of other covenants.
[5] A court must construe restrictive covenants by discerning the intent
of the parties as evidenced by clear and unambiguous language in the
document. Burton v. Douglas Cy., 65 Wn.2d 619, 621-22, 399 P.2d 68
(1965); Lenhoff v. Birch Bay Real Estate, Inc., 22 Wn. App. 70, 73, 587
P.2d 1087 (1978); Leighton v. Leonard, 22 Wn. App. 136, 141, 589
P.2d 279 (1978). The court must consider the document in its entirety.
Burton, 65 Wn.2d at 622. Only in the case of ambiguity will the court
look beyond the document to ascertain intent from surrounding
circumstances. Burton, 65 Wn.2d at 622; Leighton, 22 Wn. App. at
141; Lenhoff, 22 Wn. App. at 72-73; see also Mains Farm, 121 Wn.2d
at 815.
[6] The CCR contains an unequivocally unambiguous severability
clause:
Invalidation of any one of these covenants or restrictions by judgment
or court order shall not affect any other provisions which shall remain in
full force and effect.
CCR art. 14, SS 4. Defendants do not deny their agreement to
be bound by the provisions of the CCR, nor have they disputed the
clarity, enforceability, or applicability of the severability clause to their
circumstances. On its face, the severability clause indicates an intent to
preclude the very defense accepted by the trial court. The CCR
unambiguously mandates separate treatment of each covenant. As a
result,
Dec. 1994 WHATCOM COUNTY v. BRISBANE 345
125 Wn.2d 345
we hold the terms of the CCR make evidence of violations of other
covenants irrelevant in the present case.
ANDERSEN, C.J., and UTTER, BRACHTENBACH, DURHAM,
SMITH, GUY, JOHNSON, and MADSEN, JJ., concur.
1383 (1994).
[No. 61475-0. En Banc. November 22, 1994.]
MOUNTAIN PARK HOMEOWNERS ASSOCIATION, INC., Respondent,
v. PADDY L. TYDINGS,
ET AL, Petitioners.
[1] Judgment - Summary Judgment - Review - Role of Appellate
Court. When reviewing a summary judgment, an appellate court
engages in the same inquiry as the trial court. The court applies the
standard of CR 56(c) after considering all the facts and the reasonable
inferences therefrom most favorably toward the nonmoving party.
Questions of law are reviewed de novo.
[2] Covenants - Enforcement - Right of Property Owners. Property
owners have a right in equity to enforce restrictive covenants.
[3] Covenants - Enforcement - Abandonment - Test. Abandonment of a
restrictive covenant occurs only when prior violations by other
residents have so eroded the general plan that the enforcement of the
covenant would be useless and inequitable. The violations must be
multiple, more than minor, and material to the overall purpose of the
covenant.
338 MT. PARK HOMEOWNERS v. TYDINGS Nov. 1994
125 Wn.2d 337
[4] Appeal - Disposition of Cause - Affirmance on Other Grounds -
In General. An appellate court may uphold a judgment based on any
theory established by the pleadings and supported by the proof.
[5] Covenants - Construction - Intent of Parties - Considered as a
Whole - Extrinsic Evidence. Restrictive covenants are interpreted to
carry out the intent of the parties as evidenced by the language of the
document in its entirety. Only if the language is unclear and ambiguous
may the court look to the surrounding circumstances to ascertain the
parties' intent.
[6] Covenants - Enforcement - Abandonment - Violations of Different
Covenants - Severability Clause - Effect. When a restrictive covenants
agreement provides that the invalidation of any covenant shall not
affect the effectiveness of the remaining covenants, violations of one
restrictive covenant have no effect on the enforceability of a different
restrictive covenant.
Nature of Action: A homeowners association sought to
enforce a restrictive covenant against exterior antennas. The
defendants were residents of the subdivision who had installed an
exterior satellite receiving dish on their property.
Superior Court: The Superior Court for Pierce County,
No. 88-2-08535-3, E. Albert Morrison, J., on August 23, 1991, entered
a summary judgment in favor of the defendants.
Court of Appeals: The court at 72 Wn. App. 139 reversed
the judgment, holding that the covenant was enforceable.
Supreme Court: Holding that, under the terms of the
restrictive covenants agreement, the homeowners association had not
abandoned or selectively enforced the covenant, the court affirms the
decision of the Court of Appeals.
Robert K. Ricketts, for petitioners.
Brian L. McCoy, for respondent.
DOLLIVER
DOLLIVER, J. - Defendants Paddy L. Tydings and Richard
Tydings seek reversal of a Court of Appeals decision that reversed and
remanded a Superior Court's order. of summary dismissal with
prejudice. In the alternative, Defendants request remand to the trial
court with instructions. Defendants assign error to the Court of Appeals
ruling that
Nov. 1994 MT. PARK HOMEOWNERS v. TYDINGS 339
125 Wn.2d 337
violations of other enumerated protective covenants in a subdivision
were irrelevant to whether a covenant against antennas has been
abandoned or not enforced uniformly by Plaintiff Mountain Park
Homeowners Association. Defendants also claim that Plaintiff
procedurally forfeited its right to challenge the trial court's original
order. We affirm the decision of the Court of Appeals.
Defendants are resident homeowners in Mountain Park, a 244-unit
planned community in Pierce County, Washington. Purchasers of
property in the subdivision agree to be bound by the Declaration of
Covenants, Conditions, and Restrictions for Mountain Park (CCR).
CCR art. 14, SS 1, at 21. Plaintiff Mountain Park Homeowners
Association (Association) is a nonprofit corporation established by the
CCR whose membership consists of homeowners in the subdivision.
CCR art. 4, SS 1. The Association is empowered to enforce the CCR
through the Architectural Control Committee (ACC). CCR art. 7, SS 2;
art. 14, SS 2.
The CCR enumerates certain protective covenants, including a
prohibition on antennas:
No exposed or exterior radio or television transmission or receiving
antennas shall be erected, placed, or maintained on any part of such
premises except as approved by the ACC prior to installation or
construction.
CCR art. 9, SS 17. In 1988, Defendants installed an exterior
satellite receiving dish on their property. Acting on a complaint by
another resident, Plaintiff notified Defendants by letter that they were in
violation of the protective covenant against antennas and requested
removal of the dish. Defendants refused to remove the dish and admit
its continued presence on their property.
In October 1988, Plaintiff filed a complaint against Defendants seeking
to enforce the covenant. At the same time, the Association brought a
second suit to enforce the same antenna covenant against another
homeowner's satellite dish; the trial court in that case granted summary
judgment for the Association. In February 1989, the trial court in the
present case denied Plaintiff's motion for summary judgment and
ordered:
340 MT. PARK HOMEOWNERS v. TYDINGS Nov. 1994
125 Wn.2d 337
[I]f all covenants and/or restrictions contained in the Mountain
Park Declaration of Covenants, Conditions and Restrictions are not
uniformly enforced this action found to be discriminatory will be
dismissed.
Pl.'s Clerk's Papers, at 85.
Shortly thereafter, Plaintiff determined that 7 to 12 homeowners were in
violation of various covenants, including stored disabled vehicles,
campers, boats, building materials, and a traditional television antenna.
Plaintiff notified these violators that continued noncompliance with the
covenants would result in its seeking judicial enforcement.
Nevertheless, in June 1989, the trial court denied Plaintiff's motion for
reconsideration after deciding that the uniformity of enforcement
remained in dispute. Meanwhile, Defendant Richard Tydings served as
chairman of the ACC from 1989 to 1990.
In 1991, Defendants moved to dismiss the complaint by arguing that
Plaintiff continued to fail to enforce the CCR against other violators.
The trial court denied Defendants' motion to dismiss, deciding that a
genuine issue of material fact regarding uniform enforcement
persisted. Upon Defendants' motion for reconsideration, the court
dismissed Plaintiff's complaint with prejudice. The court held the
enforcement of the antenna covenant against Defendants was
discriminatory as a matter of law because Plaintiff
has not uniformly enforced or attempted uniform enforcement of the
[CCR] and has failed to take any action against the numerous
violations of the [CCR] except for the proceedings against defendant
herein . . ..
Order Dismissing Pl.'s Compl. With Prejudice, at 3. In
addition, the court held the covenant was an unreasonable restraint on
the use of property. The trial court denied Plaintiff's motion for
reconsideration.
In December 1993, the Court of Appeals reversed the trial court's
summary dismissal and remanded. Mountain Park Homeowners Ass'n
v. Tydings, 72 Wn. App. 139, 864 P.2d 392 (1993). The court held as a
matter of law that Plaintiff had not abandoned or selectively enforced
the covenant
Nov. 1994 MT. PARK HOMEOWNERS v. TYDINGS 341
125 Wn.2d 337
against antennas and thus dismissal for Defendants was improper.
Mountain Park, 72 Wn. App. at 148. The court also held the antenna
covenant did not constitute an unreasonable restraint on the use of
property. Mountain Park, 72 Wn. App. at 147. The Court of Appeals
denied Defendants' motion for reconsideration. This court granted
Defendants' petition for discretionary review solely on the issue of
abandonment or selective enforcement.
We first address Defendants' procedural claim. Defendants submit that
by failing to assign error to the trial court's original 1989 order, Plaintiff
waived its right to assert error to the Court of Appeals on the final 1991
order. We conclude that Plaintiff's assignment of error was sufficient.
As required by RAP 10.3(g), Plaintiff's statement of issues in its Brief to
the Court of Appeals clearly disclosed its assignment of error to the
entire ruling of the trial court; this ruling incorporated the 1989
interlocutory order. Review by the Court of Appeals was therefore
proper.
[1] We turn next to the heart of Defendants' petition: the rejection by
the Court of Appeals of their defense to enforcement. When reviewing
an order for summary judgment, the appellate court engages in the
same inquiry as the trial court. Syrovy v. Alpine Resources, Inc., 122
Wn.2d 544, 548 n.3, 859 P.2d 51 (1993). This court will affirm summary
judgment if no genuine issue of any material fact exists and the moving
party is entitled to judgment as a matter of law. CR 56(c). All facts and
reasonable inferences are considered in the light most favorable to the
nonmoving party, Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243
(1992), and all questions of law are reviewed de novo, Syrovy, 122
Wn.2d at 548 n.3.
[2] Property owners have a right in equity to enforce restrictive
covenants. See, e.g., Mains Farm Homeowners Ass'n v. Worthington,
121 Wn.2d 810, 815, 854 P.2d 1072 (1993); Ronberg v. Smith, 132
Wash. 345, 349, 232 P. 283 (1925). A number of equitable defenses
are available to preclude enforcement of a covenant: merger, release,
unclean hands, acquiescence, abandonment, laches, estoppel, and
changed neighborhood
342 MT. PARK HOMEOWNERS v. TYDINGS Nov. 1994
125 Wn.2d 337
conditions. St. Luke's Evangelical Lutheran Church v. Hales, 13 Wn.
App. 483, 488, 534 P.2d 1379, review denied, 86 Wn.2d 1003 (1975);
5 Richard R. Powell, Real Property 679[1], [2] (rev. ed. 1991); see
Tindolph v. Schoenfeld Bros., 157 Wash. 605, 608, 611, 289 P. 530
(1930). There is no question here that the antenna covenant applies to
satellite dishes and that Defendants are in violation. Mountain Park, 72
Wn. App. at 142 & n.3. Thus, Defendants can only avoid enforcement
with facts supporting a viable defense.
[3] The trial court accepted evidence of violations of other covenants to
support a defense that the antenna covenant was abandoned or
enforced selectively. The defense of abandonment requires evidence
that prior violations by other residents have so eroded the general plan
as to make enforcement useless and inequitable. Mt. Baker Park Club,
Inc. v. Colcock, 45 Wn.2d 467, 471, 275 P.2d 733 (1954); Ronberg,
132 Wash. at 352-53.
"[I]f a covenant which applies to an entire tract has been habitually and
substantially violated so as to create an impression that it has been
abandoned, equity will not enforce the covenant."
White v. Wilhelm, 34 Wn. App. 763, 769, 665 P.2d 407 (quoting
Sandy Point Imp. Co. v. Huber, 26 Wn. App. 317, 319, 613 P.2d 160
(1980)), review denied, 100 Wn.2d 1025 (1983); see Mt. Baker Park
Club, 45 Wn.2d at 471 (citing Ronberg, 132 Wash. at 350); Hagemann
v. Worth, 56 Wn. App. 85, 89, 782 P.2d 1072 (1989). Violations must
be material to the overall purpose of the covenant, and minor violations
are insufficient to find abandonment. Reading v. Keller, 67 Wn.2d 86,
89, 406 P.2d 634 (1965); Tindolph, 157 Wash. at 611; Johnson v. Mt.
Baker Park Presbyterian Church, 113 Wash. 458, 472, 194 P. 536
(1920). This court has refused to find abandonment from evidence of a
single violation. Reading, 67 Wn.2d at 90.
Washington courts have not directly addressed the relevance of a
violation of one type of covenant to the enforcement of another. The
covenants in prior cases were broad, generally prohibiting
nonresidential use and establishing
Nov. 1994 MT. PARK HOMEOWNERS v. TYDINGS 343
125 Wn.2d 337
setback or height restrictions. See, e.g., Ronberg, 132 Wash. at 346;
Johnson, 113 Wash. at 460. As a result, analysis has been limited to
whether violations of the same covenant amount to abandonment. See
Mt. Baker Park Club, 45 Wn.2d at 468, 472; White, 34 Wn. App. at 769,
771. The case at hand is made unique by the nature of the CCR;
instead of a single broad covenant, the CCR catalogs specific
prohibitions in separate covenants.
The Court of Appeals repudiated the trial court's acceptance of a
theory of abandonment based on violations of other covenants. The
court held that a defense of abandonment or selective enforcement of
the antenna covenant could only be supported by evidence of
violations of that covenant:
Violations of other covenants, e.g., violations involving stored disabled
vehicles, campers, boats, and building materials, are not relevant to
whether the covenant against antennas has been abandoned or not
uniformly enforced.
Mountain Park, 72 Wn. App. at 148. The court went on to
note that Plaintiff had enforced the three violations of the antenna
covenant in the record by court action or voluntary compliance.
Mountain Park, 72 Wn. App. at 148. Because Defendants presented no
evidence of failure to enforce the antenna covenant, as a matter of law
their defense failed.
Defendants dispute the ruling of the Court of Appeals that violations of
other covenants are irrelevant to a defense against enforcement of the
antenna covenant. They argue this ruling conflicts with three cases of
abandonment, Mt. Baker Park Club, 45 Wn.2d at 471; Hagemann, 56
Wn. App. at 89; and White, 34 Wn. App. at 769. Defendants urge the
court to adopt the analysis of other states apparently willing to consider
violations of other independent covenants as relevant to abandonment.
See Swaggerty v. Petersen, 280 Or. 739, 746, 572 P.2d 1309, 1314
(1977); Condos v. Home Dev. Co., 77 Ariz. 129, 134, 267 P.2d 1069,
1072 (1954); see also 2 Thomas E. Atkinson et al., American Law of
Property SS 9.38 (A. James Casner ed. in chief, 1952); contra
Tompkins v. Buttrum Constr. Co., 99 Nev. 142, 145, 659 P.2d 865, 867
(1983); Gladstone v. Gregory, 95 Nev. 474, 479, 596 P.2d 491,
344 MT. PARK HOMEOWNERS v. TYDINGS Nov. 1994
125 Wn.2d 337
494 (1979); Dauphin Island Property Owners Ass'n v. Kuppersmith,
371 So. 2d 31, 34 (Ala. 1979).
[4] Despite Defendants' contentions, the facts of the present case do
not necessitate our reaching the legal issue of the viability of a defense
based on violations of other independent covenants. We may sustain a
lower court's judgment upon any theory established by the pleadings
and supported by the proof. Wendle v. Farrow, 102 Wn.2d 380, 382,
686 P.2d 480 (1984). Our review of the uncontroverted evidence in the
record convinces us that the terms of the CCR itself bar a defense
based on violations of other covenants.
[5] A court must construe restrictive covenants by discerning the intent
of the parties as evidenced by clear and unambiguous language in the
document. Burton v. Douglas Cy., 65 Wn.2d 619, 621-22, 399 P.2d 68
(1965); Lenhoff v. Birch Bay Real Estate, Inc., 22 Wn. App. 70, 73, 587
P.2d 1087 (1978); Leighton v. Leonard, 22 Wn. App. 136, 141, 589
P.2d 279 (1978). The court must consider the document in its entirety.
Burton, 65 Wn.2d at 622. Only in the case of ambiguity will the court
look beyond the document to ascertain intent from surrounding
circumstances. Burton, 65 Wn.2d at 622; Leighton, 22 Wn. App. at
141; Lenhoff, 22 Wn. App. at 72-73; see also Mains Farm, 121 Wn.2d
at 815.
[6] The CCR contains an unequivocally unambiguous severability
clause:
Invalidation of any one of these covenants or restrictions by judgment
or court order shall not affect any other provisions which shall remain in
full force and effect.
CCR art. 14, SS 4. Defendants do not deny their agreement to
be bound by the provisions of the CCR, nor have they disputed the
clarity, enforceability, or applicability of the severability clause to their
circumstances. On its face, the severability clause indicates an intent to
preclude the very defense accepted by the trial court. The CCR
unambiguously mandates separate treatment of each covenant. As a
result,
Dec. 1994 WHATCOM COUNTY v. BRISBANE 345
125 Wn.2d 345
we hold the terms of the CCR make evidence of violations of other
covenants irrelevant in the present case.
ANDERSEN, C.J., and UTTER, BRACHTENBACH, DURHAM,
SMITH, GUY, JOHNSON, and MADSEN, JJ., concur.
