The doctrines of waiver, estoppel, acquiescence, and abandonment may be triggered if owners benefited by a restrictive covenant failed to enforce violations of it in the past. Hood v. Straatmeyer, 18 N.W.3d 649, 2025 S.D. 12 (2005). The South Dakota Supreme Court held that restrictive covenants could not be enforced when the neighbors had tolerated widespread violations of that exact same covenant, and it would be impractical to require all properties to be brought into compliance with the covenant.
In this case, both the plaintiff and many neighbors had violated setback requirements of 40 feet between the border and the structure, as well as a covenant prohibiting business activities on the property.
Because violations of these covenants were “widespread, unchallenged violations of the restrictive covenant throughout the subdivision, some of which were perpetrated by the Plaintiffs,…the circuit court [correctly] determined that requiring [the Defendant] to conform their use of their property to the restrictive covenant while allowing the Plaintiffs and other property owners to violate it would be inequitable.” To avoid this inequitable result, the trial court declared the covenant void. The Supreme Court affirmed and found no error in the trial court’s consideration of the equities between the parties.
Waiver applies when one acts in a manner that demonstrates intentional relinquishment of a right and that can happen when one acts in a manner inconsistent with the exercise of the right. Abandonment of a covenant is similar but requires widespread violations of the covenant that are tolerated and not stopped by those entitled to enforce the covenant. “[A] covenant [may be declared] vlid upon a showing that enforcement of the covenant would be inequitable in light of widespread, unchallenged violations which undermine the purpose of the covenant.”