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.

They can often point to other situations where enforcement of the covenants has been lax.

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. Mignacca, 2003 WL 122560 (R.I.) (Jan. 14).

David and Kathy Mignacca bought a miniature horse. “Sonny” was 311/2 inches high. 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.

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). Covenant 8 also prohibits kennels or other structures for animals.

The Mignaccas argued that the association should be barred from enforcing these restrictions because it permitted other homeowners to violate the covenants. The trial judge agreed, finding that “covenant 8 was enforced arbitrarily and therefore should not be enforced in this case.”

As 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. 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 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).”

In ruling on this defense, the Supreme Court looked to “leading authorities and the law of other jurisdictions for guidance in making our determination.”

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. Circle Square Co. v. Atlantis Development Co., 230 S.E.2d 704, 708 (S.C. 1976). 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.

“In this case, the Mignaccas argued that plaintiffs had waived the right to enforce covenant 8. 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. Taylor, 896 P.2d 222, 226 (Alaska 1995) (quoting B.B.P. Corp. v. Carroll, 760 P.2d 519, 523-24 (Alaska 1988)). 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. at 486, 400 A.2d at 266.

“The rationale for placing such a significant burden on a defendant claiming waiver is set forth in Restatement (Third) of Property: Servitudes, [sec]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. Overzealous enforcement is costly to the community both financially and because it tends to be socially divisive.’

“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. See Snow v. Van Dam, 197 N.E. 224, 229 (Mass. 1935) (holding that ‘the violation of some of the less important restrictions, but not of the restriction in question, by some of the plaintiffs [does not] deprive them … of the right to relief in equity’). Even if the residents of Ridgewood Estates have waived covenants regulating garages, tool sheds and cabanas, as the trial justice suggested, such waiver could not be transferred or applied to covenant 8, which deals with an entirely different subject matter. Therefore, the enforcement of other covenants should not have been considered in ruling on the enforcement of covenant 8.

“Moreover, it was error to rely on evidence that many residents of Ridgewood Estates, including association president and plaintiff Dressler, kept house animals other than cats or dogs. The justice considered these examples as evidence of the arbitrary manner by which covenant 8 was being enforced. At trial, however, Dressler explained her interpretation of covenant 8 as barring outdoor animals such as horses but not indoor pets.

“In our opinion, this distinction was justified. For one, the title of covenant 8, ‘Livestock and Poultry,’ renders it reasonable to conclude that the restriction was not intended to ban indoor pets such as hamsters, birds, or fish.

“Second, the two animals explicitly permitted by covenant 8, namely, dogs and cats, are pets that can be kept outdoors.

“Third, covenant 8 prohibits ‘kennels or other structure[s],’ which may be necessary to maintain certain animals outdoors. Thus, the Mignaccas’ evidence that indoor pets other than cats and dogs were kept by numerous residents of the development, including the association president, was not probative of plaintiffs’ selective enforcement or waiver of the covenant.

“Our holding in this respect is consistent with the position taken by courts in other jurisdictions that have overlooked ‘technical’ covenant violations confined within a home while enforcing the same covenant to enjoin obvious violations occurring in the open. Crimmins v. Simonds, 636 P.2d 478 (Utah 1981); Miller v. Bolyard, 411 S.E.2d 684 (W.Va. 1991) (per curiam).

“In addition to the horse at issue here, only three violations involving structures for the housing of outdoor animals were presented at trial: Carl Weinberg (Weinberg), an association board member, kept a dog kennel on his lot; the Mignaccas housed their two Siberian huskies in a pen next to their horse; and the DelFarnos had kept a miniature horse in a utility shed that they converted into a barn.

“The Mignaccas, however, failed to establish that plaintiffs’ actions or inaction in these instances amounted to a waiver of covenant 8.

“Specifically, no evidence was presented that these infractions were brought to the attention of the association or its board as a whole, or that the association considered and declined to enforce the covenant. The fact that Biern, a board member of the association, knew of the DelFarnos’ miniature horse but failed to take action to enforce the covenant does not establish plaintiffs’ waiver of covenant 8 as a result of selective enforcement. See Miller, 411 S.E.2d at 687 (citing Wallace v. St. Clair, 127 S.E.2d 742, 756 (W.Va. 1962) (holding that a lot owner is not precluded from ‘insisting upon such observance because of his failure to complain of violations of the restriction by other property owners in a different portion of the restricted area, which were not consequential or, if consequential, did not materially and adversely affect him in the use and enjoyment of his own property’)).

“Likewise, although Weinberg’s maintenance of a dog kennel may be interpreted as a personal waiver of his enforcement rights against the Mignaccas, that alone did not preclude other plaintiffs from taking action to enforce covenant 8. See Miller, 411 S.E.2d at 687 (holding that ‘[t]he willingness of some lot owners in an area restricted to residential purposes to waive the benefit of the restriction does not preclude others from insisting upon its observance.’).

“Moreover, the Mignaccas have not established that they reasonably relied on any affirmative actions by the association indicating that it would be acceptable to keep a miniature horse on their property. Therefore, plaintiffs were not estopped from enforcing covenant 8 against the Mignaccas.