FINK V. MILLER 896 P.2d 649 (1995) CASE BRIEF

FINK V. MILLER

896 P.2d 649 (1995)

NATURE OF THE CASE: Fink (P) appealed a summary judgment in favor of Miller (D) in P's action for permanent injunctive relief to enforce a restrictive covenant.

FACTS: P and D both purchased lots in the Maple Hills Subdivision. One of the covenants for Maple Hills recites that 'wood shingles . . . shall be required on the exterior roofs of all structures.' Also, prospective home builders, as well as owners intending to improve or alter existing structures, must submit all plans and specifications, including proposed exterior colors and materials, to the Community Development Committee for its approval before commencing construction. Sometime prior to 1985, Committee members received a copy of the Agreement with a handwritten addition to the roofing materials provision, so that the restriction read 'wood shingles or bar tile.' Consequently, prior to 1985 the Committee approved plans calling for tile roofs. In 1985 it learned that the covenant had not, in fact, been thus amended. Meanwhile, six homes were built with fiberglass/asphalt shingle roofs without Committee approval. By the end of 1985, twenty-nine homes had been completed in Maple Hills. Eight homes had wood shingle roofs, while twenty-one homes had either tile or fiberglass/asphalt shingle roofs. Subsequent to 1985, the Committee has sought to enforce the covenant restricting roofing materials to wood shingles and has refused to approve plans that included tile or fiberglass/asphalt shingle roofs. In 1990, the Committee approved plans submitted by D for a wood shingle roof. One year later, D requested approval to change the originally specified roofing material from wood shingles to fiberglass shingles. The Committee denied the change, but D nonetheless commenced installation of fiberglass shingles. P commenced this action seeking injunctive relief to prevent the installation of fiberglass shingles on D's home. Eventually, the court held that the covenant restricting roofing materials to only wood shingles is unenforceable. It also ruled that the Committee must approve any roofing materials of adequate quality that blend 'harmoniously with the current neighborhood.' P appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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