Justice Parker's question

Justice Parker agreed with the outcome and wrote separately “to note a doctrinal question for future consideration”:

“Is the relative-hardship test truly an affirmative defense? Or is it instead merely an element of a plaintiff's required showing to obtain an injunction?”

His argument is structural. To obtain a permanent injunction in Alabama a plaintiff must show success on the merits, irreparable injury, compatibility with the public interest, and — “critically, here” — that the balance of the equities favours issuance. That fourth element is the relative hardships, and it already belongs to the plaintiff. Yet since 2023 the court's covenant decisions have called the same inquiry an affirmative defense belonging to the owner.

Justice Parker noted he “ha[s] been unable to find any Alabama cases decided before 2023 that describe the test as an affirmative defense,” and had also “struggled to find any cases outside Alabama describing the relative-hardship test as an affirmative defense.” The 2023 case is Cole v. Davis, 383 So. 3d 646, 654 (Ala. 2023).

Why it matters, in his words: the characterisation “will dictate who bears the burden of pleading and persuasion” and “could prove case-dispositive.” He closed by saying that “[i]n an appropriate future case” he would be open to argument that the test is not truly an affirmative defense.

Why the burden question is not academic

Three Alabama appellate decisions in ten months turned on this doctrine, and the placement of the burden explains all three outcomes.

In Englund (August 29, 2025) the homeowners raised hardship, the Supreme Court found the clean-hands bar unsupported, weighed the equities itself, and reversed and rendered judgment for the homeowners. In Dendy the owners raised it and lost it to their own conduct. In Austin Brook and Austin Park Property Owners Association v. Nabors (Ala. Civ. App., June 5, 2026) the owners never pleaded hardship at all, and the Court of Civil Appeals held flatly that “the defense of relative hardship is not available to support the trial court's judgment.”

If Justice Parker is right, the Nabors result is the one that changes. An element of the plaintiff's case does not disappear because the defendant failed to plead it; an affirmative defense does. Under the current framing, an owner who does not raise relative hardship in the pleadings has forfeited the only doctrine that could have saved the structure.

What it changes for boards and owners now

Until the court takes up the question, the rule stands as stated in Cole: “the relative-hardship defense is an affirmative one, and, thus, the burden is on the party asserting the defense.” Two operational consequences follow, and they point in opposite directions.

For an owner facing enforcement: plead it, and put on evidence. Nabors is a demonstration of what happens otherwise — the trial court there also barred the owner's hardship testimony, and because the owners did not seek appellate review of that ruling, the defense was gone twice over.

For an association: a proven breach is not a guaranteed injunction, and Englund is the proof. The facts that moved the balance there were the association's own: ambiguity about what the covenant was for, no specific evidence of diminished value to neighbours, an adjacent neighbour who acquiesced, and the association's own architectural committee having recommended approving the variance. An association that wants an injunction should be able to say concretely what benefit the covenant delivers and what is lost without it.

The clean-hands overlay adds a third point, and Dendy is a warning to owners: testimony that you intended to build something other than what you submitted is testimony that forfeits the defense. Knowledge of a covenant alone does not do that — Cole and Englund both treat notice as one factor rather than a bar — but demonstrated intent to evade does.

What to watch next

Justice Parker invited argument in “an appropriate future case.” That case would need a litigant who raises the characterisation directly; in Dendy “the parties d[id] not challenge” it, and he was not convinced the outcome would have turned on it either way. No Alabama decision since December 19, 2025 has taken up the invitation so far as we can find.

We have located no subsequent history for SC-2025-0024. The slip opinion carries the standard notice that it is “subject to formal revision before publication in the advance sheets of Southern Reporter.”