J. Patrick Sutton Cases & Issues Blog

The reason new restrictions imposed by "amendment" should not be enforceable.

I've filed some 20 cases around the state on behalf of subdivision clients whose rights are being taken away by "amendments" to restrictive covenants, I've continually tried to whittle down the theory of the case to something both "legal" — in a technical sense — and readily comprehensible, even pithy. My current thinking is . . .
. . . new restrictions adopted by a majority of owners are not mere "amendments" because what they do is change the "original scheme of development."

I think that's the single most vital insight into these cases, and it also offers the courts a graceful way out of the conundrum that when a majority wants something, they should get it.

When developers create subdivisions, they divide up the land into lots (on a "plat") and then write up the "restrictive covenants" which limit how owners get to use their lots and homes. That is an important moment because it establishes the "scheme of development" which the courts will look at to see what is consistent with that scheme. If a majority adopts an "amendment" which is not consistent with the original scheme of development, there's a strong argument that that is simply a new restriction which was never intended and thus should not be enforced.

But here's the catch. If a majority adopts even a new restriction, shouldn't those owners get what they want? Absolutely! Owners can always restrict their own land. What the majority has done is created a new sub-subdivision in which a group of owners have further restricted land uses as among themselves. My position, however, is that those owners cannot bind dissenting owners to that new sub-subdivision. They have made a little island, no different than if any one of them decided to record new restrictions for his or her own property. Anyone can further restrict their own land (if the restriction does not violate public policy or constitutional rights).

This is a simple way out of the conundrum that owners can vote collectively to further restrict while preventing further restrictions from harming people who bought something completely different and never expected they could be railroaded into a new scheme of development.
J. Patrick Sutton Cases & Issues Blog