Restrictive Covenant Enforcement and Abandonment in Alabama

Alabama's common-law framework for restrictive covenants remains the primary governance instrument for many communities not covered by a modern HOA statute — and the equitable defenses against enforcement are both pow…

Doctrinal Framing

Alabama follows the common-law rule for restrictive covenant interpretation and enforcement. There is no comprehensive state statute governing residential covenants beyond the Alabama Homeowners' Association Act's prospective framework for post-2016 communities and the condominium statutes for condominium-form ownership. For the vast majority of Alabama subdivisions created before January 1, 2016 — and for those later communities that have not opted into the HOA Act — the governing instruments are the declaration of covenants recorded with the judge of probate, and the body of equitable and contract jurisprudence built up by Alabama courts.

Two foundational interpretive principles define how Alabama courts approach restrictive covenants:

Doubts are resolved in favor of free use. All ambiguities in a restrictive covenant must be resolved against the restriction and in favor of free and unrestricted use of property. This canon is well-settled in Alabama and means that a party seeking to enforce a covenant bears the burden of showing that the restriction is clear in its application to the challenged conduct.

Clear language gets plain-meaning effect. When the covenant's language is not ambiguous, it is given the effect of its plain meaning. The court will not resort to extrinsic evidence to narrow or expand a covenant whose terms are unequivocal.

Hines v. Heisler, 439 So. 2d 4 (Ala. 1983), is the foundational Alabama case articulating both principles: "in construing restrictive covenants, all doubts must be resolved against the restriction and in favor of free and unrestricted use of property," but "effect will be given to the manifest intent of the parties when that intent is clear." These twin principles have been quoted and applied by Alabama courts consistently for over four decades.

The Abandonment and Waiver Defense

Even a clearly enforceable covenant can become unenforceable through the equitable defenses of abandonment and waiver. These defenses recognize that when beneficiaries of a covenant fail to enforce it against repeated violations, they may have implicitly surrendered the right to enforce it going forward against any owner in the neighborhood.

Lange v. Scofield, 567 So. 2d 1299 (Ala. 1990)

Lange v. Scofield is the Alabama Supreme Court's primary modern treatment of the abandonment defense in the HOA context. In Lange, the plaintiff sought to build a home on a subdivided lot in Mountain Brook; the neighboring property owner (Lange) sought to enforce a restrictive covenant limiting each estate to a single residence. The trial court had declared the covenants unenforceable.

On appeal, the Alabama Supreme Court reversed and enforced the covenant, but in doing so it articulated the standard for the relative-hardship doctrine — a related but distinct equitable principle holding that a covenant "will not be enforced if to do so would harm one landowner without substantially benefitting another landowner." Id. at 1302. The Lange court found the relative-hardship test inapplicable on the facts presented because there was no evidence that enforcement would impose disproportionate harm. The opinion also recognizes that the relative-hardship defense requires that the party invoking it come to court with clean hands — a point developed more fully in subsequent decisions.

Lange is cited in nearly every Alabama restrictive covenant case for two propositions: (1) the relative-hardship doctrine exists as an equitable defense, and (2) its application is fact-specific and demands a showing that the harm to the party seeking to violate the covenant substantially exceeds any benefit to those enforcing it.

The Changed-Conditions Doctrine

The changed-conditions doctrine — distinct from relative hardship but related — holds that a covenant may become unenforceable if the character of the neighborhood has so fundamentally changed that enforcement would no longer serve the covenant's original purpose. Alabama recognizes the doctrine but applies it narrowly:

The change must affect the entire restricted area, not just a portion of it.
The change must have been so radical that the original purpose of the covenant can no longer be reasonably served.
A single violation, or even several, does not establish that the entire neighborhood has changed character.

Cole v. Davis, 2022-0723 (Ala. 2023) — a recent Alabama Supreme Court decision — illustrates the difficulty of prevailing on a changed-conditions argument. In Cole, a lot owner sought to subdivide in a neighborhood subject to anti-subdivision covenants. The court rejected arguments that the neighborhood had changed character and that a majority of other property owners had waived enforcement, finding neither theory met the required evidentiary standard. The court affirmed the injunction preventing subdivision.

Standard for Waiver and Abandonment: The Evidentiary Test

Alabama courts require more than acquiescence in a single violation to establish abandonment. The doctrine requires a showing that the general scheme or plan of the subdivision has been abandoned through the acquiescence of the original grantor or those entitled to enforce the restriction in a sufficiently large number of similar violations that the restriction has lost its value to the complaining party.

What counts as abandonment evidence:

Widespread, open, and long-continued violations of the same type as the challenged use;
Evidence that enforceable parties had actual or constructive knowledge of the violations and took no action;
Evidence that the failure to enforce was not mere forbearance but amounted to an abandonment of the right.

What does not establish abandonment:

Isolated violations that differ in degree or type from the challenged use;
Violations on lots not subject to the same covenant scheme;
Violations that are less significant than the challenged use (e.g., a minor setback encroachment does not abandon a covenant against commercial use);
Violations remedied by demand or settlement even if not by litigation.

The burden on the defendant is substantial. Courts have declined to find abandonment where a neighborhood had scattered non-conforming uses but the restriction remained generally observed. A defense that will succeed in one subdivision may fail in an adjacent one depending on the density and nature of violations.

Laches and Statute of Limitations

Restrictive covenant enforcement is an action in equity, and the doctrine of laches — unreasonable delay in asserting a right that prejudices the opposing party — applies. Alabama courts evaluate laches by considering: (1) unreasonable delay by the plaintiff in bringing the action; (2) knowledge by the plaintiff of the violation; and (3) prejudice to the defendant from the delay, typically in the form of substantial expenditures made in reliance on the plaintiff's silence.

The Alabama Court of Civil Appeals addressed the interaction of the statute of limitations and laches in HOA covenant contexts in Bekken v. Greystone Residential Assoc., Inc., summarized in Cunningham Bounds' blog coverage of the January 2017 decision. There, the court affirmed enforcement of covenants and rejected laches, statute of limitations, and unclean hands defenses because the association had not engaged in unreasonable delay and the homeowner had not demonstrated the requisite prejudice.

Statute of limitations. There is no uniform limitations period for injunctive enforcement of restrictive covenants in Alabama because the action is equitable. Damages claims arising from covenant violations are subject to the applicable tort or contract limitations period depending on how the claim is framed. The six-year limitations period for breach of written instruments under Ala. Code § 6-2-34 may apply to damages claims. Courts typically require a showing of prejudicial delay to deny injunctive enforcement on laches grounds.

Pleading and Proof

For Enforcement (Association/Beneficiary Side)

A complaint to enforce a restrictive covenant should:

Attach the recorded declaration or deed restriction and establish that it runs with the land and benefits the complaining party's parcel;
Allege the specific covenant provision violated;
Allege the specific conduct constituting the violation;
Allege that the complaining party is a beneficiary of the covenant scheme (typically a lot owner within the same platted subdivision subject to a common scheme);
Allege ongoing violation and irreparable harm to support injunctive relief.

Alabama courts have held that restrictive covenants are enforceable by any lot owner within the restricted subdivision when the covenants were part of a common development scheme, even without privity of contract between the enforcing party and the violating party.

For Abandonment or Waiver (Defense Side)

A defendant asserting abandonment must:

Plead abandonment or waiver as an affirmative defense in the answer (failure to plead it risks waiver);
Identify the specific prior violations by lot number, nature, and date — not merely allege widespread non-conforming use;
Demonstrate that the enforcing party (or its predecessors) had knowledge of the prior violations;
Demonstrate either that no demand was made to remedy the prior violations, or that demands were made but not enforced;
Present expert or survey evidence, if the claim is changed conditions, showing the neighborhood character change is substantial and affects the entire restricted area.

Discovery in abandonment cases typically requires title searches and land records review to identify prior subdivisions, improvements, and conveyances. Neighborhood surveys and aerial photograph comparisons from different periods can document changed conditions if the evidence exists.

Open Questions and Legislative Landscape

Alabama has not enacted a general restrictive covenant statute comparable to those in some other states that provide for automatic termination of aging covenants or mandatory renewal procedures. The legislature amended certain aspects of restrictive covenant law in 2023 (see the Ogletree article on Alabama's amended restrictive covenant statute), but the core enforcement and abandonment doctrine remains judicial.

Practitioners should also be alert to the Alabama Uniform Condominium Act's treatment of amendments and termination of covenants within condominium regimes — governed by the supermajority procedures of Chapter 8A — which is a distinct question from enforcement of subdivision covenants under common law.

Closing

Alabama restrictive covenant law rewards practitioners who understand both the textual and equitable dimensions of these disputes. For enforcement parties, the plain-meaning canon and the high evidentiary threshold for abandonment create a strong default position if the covenant is clearly worded and the violation is documented. For owners asserting abandonment or changed conditions, the doctrine is available but demanding: scattered prior violations and vague assertions about neighborhood change have consistently failed in Alabama courts. The defense that succeeds is one supported by comprehensive evidence of widespread, unaddressed violations of the same character across the entire restricted area.

Talk to Yates Anderson

If you are litigating a matter in this area — or weighing whether to — the working analysis above only goes so far. Request a case evaluation and a Yates Anderson attorney will respond within one business day.

Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.