The Idaho Supreme Court held, in Easterling v. Clark, 574 P.3d 349 (Idaho 2025), that statutes of limitation that require suit within four years of the claim accruing did not apply to easements by necessity because owners of land benefited by such easements have vested interests in the right to reach a public way. Non-use for a long time does not result in a loss of rights.
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 …
Applying a longstanding rule of law, the New Hampshire Supreme Court held that an easement owner cannot use an easement to access new lands acquired by the dominant estate owner that are contiguous to the lands benefited by the easement. Ryan v. Ryan, 2024 WL 4579312, 2024 N.H. LEXIS 233 (N.H. 2024). In the absence of language to the contrary an easement allows access to the lands to which the easement attaches at the time the easement is granted. New lands added to the dominant estate are not allowed to benefit from the easement under a rule that conclusively presumes that doing so would exceed the scope of the original easement. The court noted, “The purpose undergirding the rule is that the owner of the easement appurtenant may not materially increase the burden of the easement upon the servient estate or impose a new or additional burden.”
The Ninth Circuit has held that a homeowners association may not be able to enforce its rules limiting the scope of a Christmas display by owners in the common scheme if those limits are motivated by opposition to the owner’s religion in violation of the Fair Housing Act, 42 U.S.C. §3617. Morris v. W. Hayden Estates First Addition Homeowners Ass’n, Inc., 104 F.4th 1128 (9th Cir. 2024). The owners (Jeremy and Kristy Morris) had engaged in these activities at their prior home where they had strung up thousands of Christmas lights, sang Christmas carols, employed costumed characters playing Santa Claus and the Grinch, and hosted a live nativity scene with a live camel. The family also offered free hot chocolate to visitors which led to 200 families visiting their property the first day with 20 to 100 families visiting the rest of the week. When the owners put in an …
The Supreme Court of Virginia has held that a declaration that gives owners collective powers to “modify” or “change” covenants in the declaration did not give the owners the right to prevent commercial use by a lot owner that had been expressly permitted to engage in commercial uses under the original declaration. Westrick v. Dorcon Group, LLC, 901 S.E.2d, 468 (Va. 2024). While the court focused on dictionary definitions of the word “modify,” it also took the traditional (and now receding view) that covenants such be seen as encumbrances on property (rather than as valuable benefits) and thus should be interpreted narrowly to ensure the widest freedom to use land. It also noted that the power to create “exceptions,” or “modifications,” or to “vacate” the restrictions suggested a power to limit the restrictions, not a power to introduce new ones. There was no homeowner’s association created by the declaration, but …
A North Carolina court refused to allow a homeowners association (HOA) to amend its covenants to ba short-term leasing (leasing for less than 90 days) even though the HOA followed the correct procedures to amend the covenants and nothing limited their power to adopt the restriction. McDougald v. White Oak Plantation Homeowners Ass’n, 904 S.E.2d 180 (N.C. Ct. App. 2024). The modern approach to covenants tends to see them as valuable property rights and the ability of an association to “govern” the association by imposing limits on land use as a welcome power, the traditional approach viewed covenants as meddlesome encumbrances on ownership that burden an owner’s freedom to use their property as they see fit, especially when ownership is held in fee simple. These contrasting attitudes mean that the modern approach interprets ambiguities in the declaration to achieve the intent of the grantor and perhaps even to give the …
We see continued disagreement among the states on the question of whether short-term rentals violate residential use restrictions in covenants or zoning law. Some courts say that short-term rentals are consistent with residential or single-family use restrictions. See, e.g., Pandharipande v. FSD Corp., 679 S.W.3d 610 (Tenn. 2023); Lake Serene Prop. Owners Ass’n Inc. v. Esplin, 334 So.3d 1139 (Miss. 2022); Wilson v. Maynard, 961 N.W.2d 596, 2021 SD 37 (S.D. 2021). But other courts deem short-term rentals to be a trade or business and presumptively not a residential use. See, e.g., Morgan v. Townsend, 302 A.3d 30, 2023 ME 62 (Me. 2023). See also Dixon v. City of Auburn, 2023 WL 7096600 (Ala. 2023) (short-term rentals are inconsistent with zoning limitation to single-family detached dwelling units”).
The Tennessee Supreme Court affirmed the traditional rule that covenants should be seen as encumbrances on the land and strictly construed in a narrow manner so that free use of land is not unduly limited. Phillips v. Hatfield, 624 S.W.3d 464 (Tenn. 2021). This is inconsistent with the more modern method adopted by an increasing number of courts that interpret covenants by focusing on the grantor’s intent.
The Arizona Supreme Court has held that a general amendment power in a declaration does not give a homeowners’ association power to amend covenants retroactively in major ways that would violate the reasonable expectations of buyers. Kalway v. Calabria Ranch HOA, LLC, 506 P.3d 18 (Ariz. 2022). The covenants that were thought to be unfairly surprising limited the size and use of dwellings, prohibited improvements without consent of the association, changed the types and quantity of permissible livestock, limited the height and size of non-dwelling structures, and other limitations on improvements. The court noted that Arizona statutes permit amendment of covenants by the association, but held that the statute did not displace the common law rule that requires the declaration to give buyers sufficient notice of the types of amendments that are permitted.
The Alabama Supreme Court has affirmed the traditional rule that covenants remain in effect even if some owners have violated them or exceptions have been made. They only cease to be enforceable under the changed conditions doctrine when they have “ceased to have any beneficial or substantial value to the … property.” Cole v. Davis, 2023 WL 2620610 (Ala. 2023).
