No non-waiver clause, nobody enforcing — and the covenant still held
No non-waiver clause, nobody enforcing — and the covenant still held
2026-09-10 · Kentucky · Courts
What happened. The Kentucky Court of Appeals upheld enforcement of subdivision covenants in a community that had no non-waiver clause and where no entity was enforcing the outbuilding restrictions at all — affirming an order that the offending structure be removed.1
Muth v. Phillips, No. 2024-CA-1033-MR, was rendered on 15 August 2025 on appeal from Madison Circuit Court. Judge Cetrulo wrote. NOT TO BE PUBLISHED.
The test the court applied
Following Colliver and Bagby, the court held that non-enforcement defeats a covenant only where it has produced a fundamental change in the character of the neighbourhood. Relaxation short of that does not extinguish the restriction. Quoting Hardesty v. Silver, covenants remain enforceable despite relaxation when “there still remains something of substantial value to those entitled to benefit [from the restrictive covenants].”
The circuit judge had personally inspected the subdivision twice and found no such change. That finding carried the case.
Removal of the outbuilding was affirmed as the remedy for what the court treated as an intentional breach.
Why the absent non-waiver clause matters
Kentucky declarations written from the 1990s onward usually contain a clause stating that failure to enforce is not a waiver. Declarations from the 1960s and 1970s frequently do not, and boards in those communities are often told their covenants are effectively dead.
Muth says otherwise. Kentucky law does not require a non-waiver clause. The doctrine that protects the covenant is the fundamental-change test, and it operates whether or not the document anticipates it.
Reading this against the case decided a week later
These two decisions arrived seven days apart and are best understood together.
In Strause v. Bradford Grove, rendered 22 August 2025, the Court of Appeals upheld refusal of a six-foot fence and treated the declaration's non-waiver clause as “additional support for rejecting” the waiver argument — while candidly footnoting that no binding published Kentucky precedent upholds a restriction against waiver on the strength of such a clause alone.
Muth, rendered 15 August 2025, reached the same destination with no clause at all.
The honest reading is that in Kentucky the non-waiver clause is helpful but not load-bearing. What actually defeats a waiver defence is the evidence: that the neighbourhood's character has not fundamentally changed, and that the covenant still delivers something of substantial value to the owners entitled to its benefit.
What that means you have to be able to prove
This shifts the work from drafting to record-keeping. A board defending a waiver argument needs to show a court what the neighbourhood is actually like.
- Count the violations, honestly. Eighteen non-conforming fences out of 151 homes did not change the character of Bradford Grove. A subdivision where most lots violate the restriction is a different case, and a board that sues finds out which one it is in.
- Distinguish visible from technical breaches. The test is about the character of the neighbourhood, which is a question about what the place looks and feels like — not about how many paragraph-level infractions a careful audit could find.
- Keep dated photographs. The judge in Muth went and looked, twice. Most judges will not. A board's photographic record over time is the substitute, and it is worthless if it starts on the day the dispute does.
- Be ready to say what value remains. Hardesty's formulation asks whether something of substantial value survives for the benefited owners. That is an argument about why the restriction still does work — density, sightlines, uniformity, resale — and it is more persuasive from owners than from counsel.
The site visit is worth noticing
The court's approving treatment of a trial judge inspecting the subdivision in person is a small procedural point with real consequences. It means the character-of-the-neighbourhood question is being treated as a factual finding of the trial court, reviewed deferentially, rather than a legal conclusion an appellate panel will revisit.
For a board, that raises the stakes at the circuit court level considerably. The case is effectively decided on the record built there.
The limit: this does not resurrect a stale claim
One important caution, because Muth is easy to read as saying old covenants are always enforceable.
Waiver and limitations are separate defences, and only one of them is about neighbourhood character. In August 2026 the Court of Appeals held that an action to enforce a deed restriction must be brought within five years under KRS 413.120, and barred enforcement against a deck and driveway that had stood since 2001. Surviving a waiver argument is no help to a board whose claim accrued a decade ago.
So the sequence for a Kentucky board is: is the claim in time, is the restriction in this lot's chain of title, and only then, has the neighbourhood changed so fundamentally that the covenant is spent.
What to watch next
Both Muth and Strause are unpublished, and so under the Rules of Appellate Procedure are non-binding and citable only in limited circumstances. The underlying authorities they apply — Colliver, Bagby, Hardesty v. Silver — are not, which is why the reasoning is more durable than the opinions' status suggests.
The gap that would be worth closing is a published Kentucky decision on the effect of a non-waiver clause. The Court of Appeals has now twice noted that none exists.
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