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 NOT TO BE PUBLISHED.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.
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