B.B.P. Corporation v. Carroll

The University Heights Subdivision, comprising 95 lots, was subject to various restrictive covenants, including Covenant Five, requiring tenants to cut all poplar, cottonwood, and aspen trees on their properties, and Covenant Six, requiring all downhill lot owners to cut trees obstructing the view of an uphill lot owner upon request. The property plat provided that all covenants would remain in effect unless modified or repealed by agreement between the board of trustees of B.B.P. Corporation (BBP) (plaintiff) and at least three-quarters of all lot owners. It turned out that strict compliance with Covenant Five was nearly impossible, as poplar, cottonwood, and aspen trees reseed themselves and spring back extremely quickly. For this reason, none of the lots, including that of BBP’s president, fully complied with Covenant Five. Lot owners, however, did appear to comply with Covenant Six to the extent requests to do so were made. In March 1986, a newly elected board of trustees unanimously voted to repeal Covenants Five and Six, and recorded the modification. A few days prior, BBP had filed suit against several lot owners, including Carroll (defendants), to enforce Covenants Five and Six. Carroll and the other owners moved for summary judgment, contending that the covenants were no longer in force because they were officially repealed by the board of trustees’ vote, or in any event, were unofficially abandoned by the residents due to consistent and widespread noncompliance. The court granted Carroll’s motion for summary judgment. BBP appealed.