The committee's interpretation was not a breach at all

The most useful part of the opinion for an architectural committee is the step before waiver. The court accepted Carpenter's point that the eight partial metal roofs were not breaches — and that this helped the association:

“We agree with Carpenter that this interpretation by the Committee when it specifically allowed partial metal roofing would not constitute a breach of the DRO that would trigger the 'no waiver' clause because the Committee agreed partial metal roofing is allowed, and all questions of interpretation of the terms of the DRO are final and binding on all parties affected under Section 25 of the DRO.” (¶11)

Where the governing documents give the committee final interpretive authority, the committee applying that authority is not tolerating a violation. It is deciding what the covenant means. There is nothing to waive. See our North Dakota architectural review page for how that authority is usually granted.

The court also refused to require magic words when granting an approval:

“reading the DRO as a whole, nothing requires Southbay or the Committee to use specific language to qualify or reserve future enforcement authority when approving roofing materials or enforcing any other restriction.” (¶21)

The two unapproved roofs were handled differently, and the reasoning matters

On the two homes that built full metal roofs without approval, the court did not decide whether they were in breach. It said:

“Assuming without deciding those two homeowners are in breach, Southbay has discretion whether to remedy the breach, and the 'no waiver' provision is relevant because there has been no action taken to enforce the restrictive covenant on these two homes.” (¶13)

That is a meaningful concession to boards: discretion not to pursue a violation is not, by itself, abandonment of the covenant. But read it with ¶22, where the court corrected the district court for going too far — it called the lower court's reasoning “overly broad” and held the no-waiver clause does not apply to the eight partial-metal-roof homes. The association won on narrower ground than it won below.

The signpost the court left for the next homeowner

One sentence at ¶22 tells a future litigant exactly where the association is exposed:

“Had Carpenter submitted a construction plan including a partial metal roof, his argument may have some merit.”

The committee had decided partial metal roofing is permitted. An owner refused a partial metal roof after eight neighbours got one would be on very different ground. Consistency within an interpretation is where the risk sits — not consistency between an interpretation and something the committee never allowed.

What North Dakota still has not decided

At ¶16 the court recited waiver factors from Texas and Nebraska decisions — “the number, nature, and severity of any existing violations, prior acts of enforcement, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant” — and then said plainly that “[t]his Court has not adopted any specific list of factors.”

So North Dakota has a clear rule on the no-waiver clause and no settled test for waiver where a declaration has no such clause. That gap is real, and a board whose declaration lacks a § 22 equivalent should know it is operating in it.

What this means for a North Dakota board

Find out whether your declaration has a no-waiver clause. It is the single provision that decided this case. If it is absent, Carpenter does much less for you.

Write down interpretations, not just approvals. The committee's position that partial metal roofing is allowed is what made the eight approvals defensible. An approval with no stated reasoning looks, years later, like tolerance of a violation.

Enforce inside an interpretation consistently. ¶22 is the roadmap for the next challenge.

Do not read this as licence to ignore violations. Discretion survived here because a no-waiver clause was in the document and the unapproved roofs had never been enforced against anyone. Selective enforcement of the same rule against some owners and not others is a different case.

The court also declined to award the association costs and fees, holding the appeal was not frivolous (¶26), citing Lucas v. Riverside Park Condominiums Unit Owners Association, 2009 ND 217. Winning did not make the homeowner's argument sanctionable.

What to watch next

Watch for the case that arrives without a no-waiver clause, which is when North Dakota will have to choose a waiver test. And watch the shelf: Carpenter, Wachter Development v. Martin (2019 ND 202) and Hill v. Lindner (2009 ND 132) are essentially the whole of North Dakota's modern covenant-enforcement authority.