Dendy v. Ryan: Clean Hands as a Bar to the Relative‑Hardship Defense in Restrictive Covenant Enforcement

Dendy v. Ryan: Clean Hands as a Bar to the Relative‑Hardship Defense in Restrictive Covenant Enforcement

I. Introduction

In Dendy v. Ryan, decided on December 19, 2025, the Supreme Court of Alabama affirmed a sweeping injunction enforcing restrictive covenants in the River Pointe subdivision in Guntersville. The Court held that, although the “relative‑hardship test” remains a viable equitable limitation on injunctions enforcing restrictive covenants after Cole v. Davis and Englund v. Dauphin Island Property Owners Association, that test is unavailable to a defendant whose conduct constitutes willful, morally reprehensible misconduct under the clean‑hands doctrine.

The case sits at the intersection of three important strands of Alabama law:

  • Strict enforcement of clear restrictive covenants by injunction;
  • The relative‑hardship test as an equitable safety valve; and
  • The clean‑hands doctrine as a gatekeeper to equitable relief and defenses.

At the same time, Justice Parker’s special concurrence raises a future‑looking doctrinal question: whether the “relative‑hardship test” is truly an affirmative defense, or instead just another way of describing the plaintiff’s obligation to show that the balance of equities favors a permanent injunction.

II. Factual and Procedural Background

A. The Subdivision and the Covenants

River Pointe is a residential subdivision created in 1998 in Guntersville, Alabama. All lots are subject to recorded restrictive covenants (the “River Pointe Covenants”) running with the land, drafted by attorney David Jones, who testified that they were “standard” and “routine” subdivision covenants.

Key here is Article Four, Section 1(c), titled “Construction Plans,” which provides in substance:

  • No “improvement” may be commenced, erected, altered, added to, or improved on any lot until a complete set of construction plans and specifications, including location, elevations, materials, and landscaping, has been submitted to and approved in writing by the subdivision’s Architectural Committee (“AC”).
  • The AC is charged with ensuring that all improvements meet “high neighborhood standards,” and it is granted “broad discretion” to refuse approval for aesthetic or other reasons, taking into account suitability, materials, harmony with surroundings, and effect on neighboring property.

The covenants were properly recorded in the probate court. Thus, they gave constructive notice to all purchasers, including the Dendy defendants.

B. The Parties and the Construction

  • River Pointe plaintiffs: Individual lot owners (James Ryan, Jim Durbin, Eric Newman, Todd Carroll, and Gail Kappler) and the Architectural Committee.
  • Dendy defendants: Builder/homeowner Dendy and Dendy Investment Group, LLC, owners of Lots 7 and 8.

Dendy, a professional home builder who owned multiple lots in River Pointe, admitted at trial that:

  • He had actual knowledge of the River Pointe Covenants before beginning construction on Lots 7 and 8.
  • He knew AC approval was required both for initial plans and for changes.

In January 2021, the Dendy defendants submitted two complete sets of construction plans (one for each lot) to the AC. The AC formally approved those plans around February 4, 2021. The approval authorized construction of two specific $800,000+ homes in accordance with those plans.

However, after obtaining approval, Dendy abandoned the approved plans and began constructing different structures that did not conform to those plans. An engineer/draftsman, Phillip Bartlett, later testified that:

  • He prepared detailed, to‑scale drawings of the houses as built on Lots 7 and 8.
  • He examined “every drawing, plan or diagram” Dendy had submitted to the AC or to the City.
  • None of those plans matched the houses under construction on Lots 7 and 8.

At trial, Dendy admitted that:

“The [AC] never approved any houses that look like this.” … Q: “After [your original plans] were approved by the [AC] … do you contend that you can build anything you want to on Lots 7 and 8 without regard for the [AC]’s approval?” A: “Yes.”

He testified that he did not build the approved houses because “River Pointe Drive was in the wrong place” and because of the City’s setback lines.

C. AC Objections and Continued Construction

As construction progressed, it became obvious that the buildings on Lots 7 and 8 did not match the approved plans. The AC notified Dendy that:

  • The construction did not conform to any approved plans;
  • The AC had not approved the new designs; and
  • He needed to stop or seek proper approval.

On August 5, 2022, Dendy delivered a letter to the AC with a hand‑drawn sketch of one floor of a three‑story building, asking the AC to treat this as an “addendum” to the previously approved plans. The AC rejected this because:

  • The submission was not a “complete set of construction plans and specifications” as required by the covenants; it showed only a single floor; and
  • In substance, it sought approval for entirely different houses.

The AC’s August 11, 2022 letter emphasized that:

  • Approval was required before construction started;
  • Dendy was “framing in a house without approval”; and
  • Any changes had to be presented for further approval.

Despite this, Dendy candidly testified that, after the AC’s rejection, he “just built” – continuing construction for over two years, including during the litigation.

D. The Lawsuit and Trial Court Judgment

In April 2022, the River Pointe plaintiffs filed suit seeking declaratory and injunctive relief. They alleged that:

  • Dendy lacked valid building permits;
  • The construction violated the AC‑approved plans; and
  • The construction violated municipal codes.

The Dendy defendants counterclaimed (including for declaratory relief). The trial court granted summary judgment to the River Pointe plaintiffs on all counterclaims.

After a bench trial on June 25, 2024, the judge visited the subdivision, inspected the houses on Lots 7 and 8 inside and out, and drove through River Pointe to view its overall character. On October 4, 2024, the court issued a detailed judgment finding:

  • The covenants were clear, unambiguous, and “standard” restrictive covenants.
  • Dendy had actual and constructive notice of the covenants.
  • He knowingly constructed houses that did not conform to the AC‑approved plans and did so without submitting new complete plans for approval.
  • His asserted interpretation – that once any plans are approved, a lot owner may then build “anything” without further approval – was “totally absurd” and contrary to the plain language of the covenants.

The court ordered that:

  • Dendy must “fully comply” with the covenants as to Lots 7 and 8.
  • He could:
    • Either modify the existing structures to conform strictly to the previously approved plans; or
    • Within 30 days, submit complete, covenant‑compliant plans for AC approval and then construct in conformity with those approved plans.
  • If he failed to obtain approval, he must “immediately submit a plan to the [AC] for the immediate removal of any structure(s)” on Lots 7 and 8 that lacked AC approval.

The court denied all other relief.

E. Post‑Judgment Motions and Appeal

The Dendy defendants:

  • Filed a Rule 59(e) motion to alter, amend, or vacate; and
  • Filed a separate motion to extend the 30‑day window to obtain AC approval, asserting they had submitted “floorplans” but might need time to “resubmit” if the AC demanded more.

The River Pointe plaintiffs responded that:

  • Dendy had not submitted a complete set of construction plans and specifications within the 30 days; instead, he provided only simple exterior sketches and a floorplan similar to what had already been introduced at trial.
  • The AC had unanimously rejected these documents.

The trial court denied both motions. The Dendy defendants appealed, focusing on:

  1. The trial court’s failure to apply the relative‑hardship test before issuing an injunction; and
  2. An argument that the doctrine of laches barred enforcement because of the plaintiffs’ alleged delay.

III. Summary of the Supreme Court’s Opinion

The Supreme Court of Alabama:

  1. Held that the relative‑hardship test was not waived as an affirmative defense, because Dendy had raised it in his pretrial brief and the plaintiffs litigated it without objection. Under Rule 15(b), the issues were thereby enlarged to include that defense.
  2. Held that the laches defense was waived because it was raised for the first time in a post‑judgment motion, and the trial court was not required to consider new defenses at that stage.
  3. Affirmed the injunction, holding that:
    • Under Cole and Englund, mere knowledge of a covenant does not automatically bar the relative‑hardship test; however,
    • Here, Dendy’s conduct amounted to willful, morally reprehensible misconduct as to known facts, giving him “unclean hands” and barring him from invoking the relative‑hardship test.

The Court concluded that the trial court acted within its discretion, under the ore tenus standard, in declining to apply the relative‑hardship test and in enforcing the covenants by injunction.

Justice Parker concurred specially to question whether the relative‑hardship test should really be treated as an affirmative defense at all, as opposed to part of the plaintiff’s burden to show that the balance of equities favors granting a permanent injunction.

IV. Detailed Analysis

A. Key Doctrines and Concepts

1. Restrictive Covenants and Architectural Control

Restrictive covenants in subdivisions are private land‑use rules designed to:

  • Protect property values;
  • Ensure aesthetic and design uniformity; and
  • Provide predictability to purchasers.

Architectural control provisions—such as the requirement to submit a “complete set of construction plans” to an AC—are central tools for achieving those goals. Alabama law:

  • Disfavors restrictive covenants in a general sense, requiring strict construction against restriction; but
  • Enforces clear, unambiguous covenants according to their plain meaning, often by injunction.

Here, the Court agreed with the trial court that the River Pointe Covenants were clear and unambiguous: you may not “commence, erect, place, alter, add to, or improve” any structure on a lot without prior written AC approval of a complete plan set.

2. Permanent Injunctions and the Relative‑Hardship Test

To obtain a permanent injunction in Alabama, a plaintiff must typically show:

  1. Success on the merits;
  2. Irreparable injury absent an injunction;
  3. That an injunction is consistent with the public interest; and
  4. The balance of equities (relative hardships) favors an injunction.1

In the specific context of restrictive covenants, older Alabama decisions—such as Tubbs v. Brandon, 374 So. 2d 1358 (Ala. 1979)—held that:

“When a restrictive covenant is broken, … an injunction should be issued because the mere breach of the covenant is a sufficient basis for interference by injunction. The right to enjoin such a breach will not depend upon whether the covenantee will be damaged by the breach.”

Yet in Lange v. Scofield, 567 So. 2d 1299 (Ala. 1990), the Court recognized the relative‑hardship test as an equitable limitation: a court may refuse to enforce a covenant by injunction where:

  • The covenant has “ceased to have any beneficial or substantial value” to the plaintiff; or
  • The defendant would suffer great hardship and the consequences would be inequitable.

This test is not about whether a breach occurred (it did), but whether equity should nevertheless withhold injunction because the hardship to the violator is grossly disproportionate to the benefit of strict enforcement.

3. The Clean‑Hands Doctrine

Equity’s maxim is that “he who comes into equity must come with clean hands.” As summarized in J & M Bail Bonding Co. v. Hayes, 748 So. 2d 198, 199 (Ala. 1999):

The doctrine bars a party from asserting equitable rights when that party’s own wrongful conduct makes the assertion “contrary to equity and good conscience.”

Under Weaver v. Pool, 249 Ala. 644, 648, 32 So. 2d 765, 768 (1947), and Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So. 2d 924, 932 (Ala. 2007), the misconduct must:

  • Generally be willful, not merely negligent; and
  • Be “morally reprehensible as to known facts.”

Englund (discussed below) clarifies that:

  • Mere carelessness or misunderstanding is typically not enough to create unclean hands; but
  • Deliberate disregard of known covenants and willful violations can be.

4. Laches

Laches is an equitable defense that bars relief when:

  • A claimant unreasonably delays asserting a right, and
  • The delay prejudices the opposing party (e.g., by increasing costs, changing positions, or destroying evidence).

It is an affirmative defense that must be pleaded under Rule 8(c), Ala. R. Civ. P., or it is generally waived.

5. Affirmative Defenses and Waiver (Rule 8(c) and Rule 15(b))

Under Rule 8(c), certain defenses—such as laches, statute of limitations, estoppel, and (as currently labeled) relative hardship—must be specially pleaded. Failure to plead ordinarily waives them, meaning:

  • The defendant cannot present evidence on them; and
  • The court should not consider them, unless:

Rule 15(b) provides an important safety valve: when an unpleaded issue is tried by the express or implied consent of the parties, the pleadings are treated as though they had raised that issue. This occurs when:

  • A party raises an issue in, for example, a pretrial brief;
  • The opposing party responds on the merits without objecting that the issue is unpleaded; and

That is precisely what happened with the relative‑hardship defense in Dendy.

B. Precedents Shaping the Decision

1. Laney, Tubbs, and the Baseline of Strict Enforcement

  • Laney v. Early, 292 Ala. 227, 292 So. 2d 103 (1974) Established that unambiguous restrictive covenants are given their “plain and manifest meaning,” and if there is no ambiguity, “the clear and plain language of the covenant is enforceable by injunctive relief.”
  • Tubbs v. Brandon, 374 So. 2d 1358 (Ala. 1979) Stated that when a covenant is broken, an injunction “should be issued” and that enforcement does not depend on proof of actual damage.

These cases underpin the trial court’s baseline view: once a breach of a clear covenant is shown, injunction is the default remedy.

2. Lange and the Relative‑Hardship Test

Lange v. Scofield, 567 So. 2d 1299 (Ala. 1990), introduced a critical nuance:

  • Covenants are enforced in equity, and equitable relief (like injunctions) will not be decreed if it would be “inequitable and unjust” under the circumstances.
  • If enforcement would impose excessive hardship on the violator and give little or no benefit to the covenantee, equity may refuse to enjoin despite a technical breach.

This is the origin of the relative‑hardship test as an equitable limitation on strict enforcement.

3. Maxwell and Grove Hill: The Pre‑Cole Approach

  • Maxwell v. Boyd, 66 So. 3d 257 (Ala. Civ. App. 2010)
  • Grove Hill Homeowners' Ass'n v. Rice, 90 So. 3d 731 (Ala. Civ. App. 2011)

Before Cole, the Court of Civil Appeals developed a line of cases holding that:

  • If the violator had actual or constructive knowledge of the covenant, then under the clean‑hands doctrine he could not invoke the relative‑hardship test.
  • In practice, this created a near bright‑line bar to the defense in almost every case, because recorded covenants give constructive notice to all owners.

The trial court in Dendy explicitly cited Maxwell and leaned on this “strict” view: where language is clear, injunction follows, and knowledge of the covenant effectively defeats attempts to avoid enforcement.

4. Cole v. Davis: Restoring the Relative‑Hardship Test

Cole v. Davis, 383 So. 3d 646 (Ala. 2023), was a turning point. The Supreme Court held:

  • The relative‑hardship test remains a valid equitable doctrine.
  • A violator’s knowledge of the covenant—whether actual or constructive—does not automatically bar the defense.
  • Knowledge is merely one factor the trial court may consider when deciding whether the defendant’s hardship is “considerably disproportionate” to the plaintiff’s benefit from enforcement.
  • The Court expressly disapproved the Court of Civil Appeals’ near‑categorical rule that knowledge equals unclean hands and thereby extinguishes the defense.

However, Cole did not give violators carte blanche. It reaffirmed that equitable defenses depend on a holistic balancing of circumstances, including:

  • The violator’s good or bad faith;
  • The nature of the breach;
  • The importance of the covenant to the plaintiff; and
  • The conduct of both sides.

5. Englund: Applying Cole and Clarifying Clean Hands

After briefing in Dendy concluded, the Court decided Englund v. Dauphin Island Property Owners Association, ___ So. 3d ___ (Ala. 2025). There, homeowners built a house on Dauphin Island after:

  • Obtaining a building permit from the Town; and
  • Being told by the Town’s permit clerk (under a “one‑stop” arrangement) that the Town would route their plans to the property owners’ association (DIPOA).

They did not independently submit an application to the DIPOA as its covenants required. When DIPOA issued a stop‑work order, the owners mostly complied, doing only minimal work (with court permission) to protect the structure from deterioration.

The DIPOA argued they had unclean hands because they knew DIPOA’s approval was required. The Supreme Court disagreed, holding that:

  • The owners’ conduct was, at worst, negligent—a misunderstanding of a confusing one‑stop process;
  • Negligent misconduct is insufficient to establish unclean hands;
  • Therefore, DIPOA could not rely on the clean‑hands doctrine to block the relative‑hardship test; and
  • The trial court erred in failing to apply the relative‑hardship test.

Englund summarized Cole as holding that:

  • A party’s knowledge of a covenant is not automatically disqualifying;
  • The key question is whether the party’s actions rose to the level of “morally reprehensible, willful misconduct,” considering all the surrounding circumstances and the conduct of both sides.

6. Clean Hands in J & M Bail Bonding, Weaver, and Retail Developers

The Court in Dendy imports the broader Alabama clean‑hands jurisprudence:

  • J & M Bail Bonding Co. v. Hayes, 748 So. 2d 198 (Ala. 1999): Equity bars relief where asserting rights would be “contrary to equity and good conscience,” and application is within the trial court’s discretion.
  • Weaver v. Pool, 249 Ala. 644, 32 So. 2d 765 (1947): Unclean hands usually involves “willful misconduct” that is “morally reprehensible as to known facts,” and courts must also consider the adversary’s conduct and public policy.
  • Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So. 2d 924 (Ala. 2007): Reiterates that the doctrine targets “specific acts of willful misconduct” of a morally reprehensible nature.

These frames guided the Court’s evaluation of whether Dendy’s conduct barred him from invoking the relative‑hardship test.

7. Waiver and Rule 15(b): Hayes, Newman, and Bechtel

On waiver, the Court draws from:

  • Hayes v. Payne, 523 So. 2d 333 (Ala. 1987): The substance of unpleaded affirmative defenses may be asserted via pretrial motions, and if evidence is introduced without objection, Rule 15(b) treats the issue as if it were pleaded.
  • Newman v. Howard, 239 So. 3d 1147 (Ala. 2017), and Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793 (Ala. 1984): Reinforce that Rule 8(c) is mandatory but subject to enlargement of issues if no objection is made.

Applying these cases, the Court holds that the relative‑hardship defense was not waived in Dendy because:

  • Dendy argued it extensively in a pretrial brief, citing Cole and other precedent;
  • The River Pointe plaintiffs responded on the merits (citing Maxwell), without objecting to the lack of formal pleading; and
  • The parties litigated the factual issues relevant to relative hardship throughout trial and post‑trial briefing.

8. Laches and Post‑Judgment Motions: Special Assets and Green Tree

On laches, the Court relies on:

  • Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So. 2d 668 (Ala. 2007): The trial court has discretion to consider new legal arguments raised in a post‑judgment motion but is not required to do so; appellate courts will not presume that the trial court considered such unpleaded defenses.
  • Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366 (Ala. 1988): Same principle.

Because Dendy raised laches only in his Rule 59(e) motion, the Supreme Court holds that the defense was not preserved for appeal.

C. Procedural Rulings: Waiver of Relative Hardship vs. Laches

1. Relative‑Hardship Test Not Waived

Although Dendy did not plead the relative‑hardship test in his answer, he:

  • Dedicated over four pages in his pretrial brief to arguing it, with detailed case citations including Cole;
  • Attached supporting caselaw; and
  • Raised it again in his post‑judgment motion.

The River Pointe plaintiffs:

  • Did not object on Rule 8(c) grounds;
  • Instead, engaged the issue head‑on, arguing that the defense failed on the merits because of Dendy’s lack of clean hands (citing Maxwell); and
  • Explicitly stated that Dendy had “raise[d] the equitable principle of the relative‑hardship doctrine as a defense.”

On these facts, the Court holds that the issue was tried by implied consent under Rule 15(b). Thus, the defense was not waived, and the trial court was obliged at least to consider whether to apply the relative‑hardship test.

2. Laches Waived

By contrast, Dendy raised laches for the first time in his post‑judgment Rule 59(e) motion. The trial court denied the motion without expressly addressing laches. Under Special Assets, the Supreme Court:

  • Refuses to presume that the trial court chose to consider laches on the merits; and
  • Declines to reach the merits of laches on appeal.

The laches argument nevertheless surfaces indirectly: the Court notes that a plaintiff’s delay and conduct can be considered within the clean‑hands analysis—e.g., whether plaintiffs sat on their rights while the defendant built in reliance. But as a separate affirmative defense, laches is out of the case.

D. Clean Hands as a Bar to the Relative‑Hardship Test in This Case

1. The Critical Distinction from Englund

In Englund, the defendants:

  • Relied on a Town clerk’s representation that the Town would forward plans to DIPOA;
  • Were operating under a genuine, if misguided, understanding of the “one‑stop” process;
  • Did not continue substantial construction after DIPOA’s stop‑work order; and
  • Sought court permission for limited work solely to protect the structure.

The Court held that such circumstances at most constituted negligent misconduct and did not amount to morally reprehensible, willful misconduct. Therefore, the clean‑hands doctrine could not bar their use of the relative‑hardship test.

2. Dendy’s Conduct as “Morally Reprehensible, Willful Misconduct”

In sharp contrast, the Court in Dendy finds multiple layers of willful, morally problematic conduct:

  • Deliberate Plan Substitution (“Bait‑and‑Switch”) Dendy:
    • Submitted complete plans and obtained AC approval for specific high‑end homes;
    • Then abandoned those plans entirely and constructed substantially different structures without submitting new complete plans for approval;
    • Admitted at trial that the houses built did not “resemble” the approved plans; and
    • Testified that he believed he could build “anything” he wanted after obtaining initial approval.
    The Court characterizes his legal position as “totally absurd” because it would allow a lot owner to obtain approval for a $1,000,000 home and then build a $100,000 home with no further review.
  • Continued Construction After Notice and During Litigation The AC:
    • Informed Dendy that his construction was not in compliance;
    • Reminded him of the covenant procedures; and
    • Urged him to follow the covenants.
    Dendy’s response: “I tried to fix the problem, and I just built. That’s what I did.” He continued constructing for over two years, including after the lawsuit was filed, without:
    • Securing proper AC approval; or
    • Seeking court guidance or a partial stay akin to the defendants in Englund.
  • Minimal, Inadequate Efforts at Compliance When ordered to seek approval within 30 days post‑judgment, Dendy sent the AC only:
    • Simple sketches and floorplans; and
    • An engineering schematic for a retaining wall.
    These did not constitute a “complete set of construction plans and specifications” and were rejected. The Court notes that Dendy had effectively “done absolutely nothing” to bring the houses into compliance.
  • Attempt to Shift Responsibility On appeal, Dendy argued that:
    • No one “told him to stop” building;
    • The plaintiffs’ failure to seek a preliminary injunction and the trial court’s failure to issue an early stop‑work order “greenlit” his continued construction; and
    • Voluntary cessation would have exposed him to liability to buyers and subcontractors, so he should not be penalized for continuing without compulsion.
    The Court finds this reasoning incompatible with equity, particularly since Dendy admits:
    • He knew the construction violated the covenants; and
    • He deliberately proceeded anyway.

Taken together, the Court concludes that Dendy’s conduct rose far beyond negligence or misunderstanding. It was a knowing, deliberate attempt to evade the covenant regime and then to use the self‑inflicted hardship (the cost of tearing down nearly completed expensive houses) as a shield against enforcement.

3. The Role of the Plaintiffs’ Conduct

The Court acknowledges that, under Englund and Weaver, the plaintiff’s conduct is also relevant to clean hands. Dendy argued:

  • The River Pointe plaintiffs sued “relatively quickly” as to Lot 8 but waited over a year to sue over Lot 7; and
  • This delay contributed to his hardship.

The Court is not persuaded. It observes that:

  • Dendy knew early on that the AC disapproved of the construction;
  • He knew his houses did not conform to any approved plans;
  • He knew that the covenants required approval for any alterations; and
  • Notwithstanding all this, he “just built.”

Thus, any additional hardship he now faces results from his own intentional decisions, not from plaintiffs’ or the court’s inaction.

4. Ore Tenus Review and Deference to the Trial Court

Because the case was tried ore tenus (live testimony before the judge), the Supreme Court reviews factual findings under a deferential standard. It will not reverse unless the judgment is “palpably erroneous or manifestly unjust.”

Applying that standard, the Court holds that:

  • The evidence amply supports a finding of willful, morally reprehensible misconduct;
  • Even if the trial court did not use the phrase “unclean hands,” it effectively denied the relative‑hardship defense on that basis; and
  • Such a determination falls well within the trial court’s equitable discretion.

E. Justice Parker’s Special Concurrence: Is Relative Hardship an Affirmative Defense?

Justice Parker agrees with the result but highlights an important doctrinal issue for future cases:

  • Under general injunction law (e.g., Tipp v. JPMC Specialty Mortg., LLC, 367 So. 3d 357 (Ala. 2021); Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So. 3d 90 (Ala. 2010)), a plaintiff seeking a permanent injunction must show that “the balance of the equities” favors issuance.
  • This suggests that evaluating relative hardship is part of the plaintiff’s burden, not something the defendant must raise affirmatively.
  • Several recent cases (including Cole and Englund) describe the relative‑hardship test as an “affirmative defense,” implying:
    • The defendant must plead and prove it; and
    • Failure to plead may waive it.

Justice Parker notes:

  • He has found no pre‑2023 Alabama case, nor out‑of‑state cases, that treat the relative‑hardship test as an affirmative defense;
  • Labeling it as such has significant practical consequences:
    • Burdens of pleading and persuasion shift;
    • Waiver becomes a serious risk; and
    • Outcomes could hinge on that characterization.

While not convinced that reclassification would change the outcome in Dendy, he signals openness to future arguments that:

  • The relative‑hardship test is better understood as part of the plaintiff’s burden to justify equitable relief, not a discrete affirmative defense; and
  • Equity jurisprudence should remain coherent across all substantive areas, not fractured for restrictive‑covenant cases.

V. Impact and Practical Implications

A. For Homeowners’ Associations and Architectural Committees

  • Reaffirmed Authority: HOAs and ACs can confidently rely on clear, recorded covenants requiring prior plan approval, knowing that courts will generally enforce them by injunction.
  • Power to Demand Compliance or Removal: Where a builder knowingly disregards AC approval processes and proceeds with unapproved construction, courts may compel either:
    • Conformity with previously approved plans; or
    • Demolition or removal of the offending structures.
  • Communication Still Matters: Englund shows that confusing or inconsistent practices (like one‑stop agreements) can weaken the HOA’s equitable posture. Clear, documented procedures reduce the risk that violators will successfully invoke the relative‑hardship test.

B. For Builders and Lot Owners in Covenant‑Controlled Subdivisions

  • Initial Approval Is Not a Blank Check: AC approval of one set of detailed plans does not authorize unilateral, substantial changes. Any meaningful change requires fresh submission of a complete plan set and new approval.
  • Ignore Covenants at Your Peril: If you knowingly build something materially different from what was approved, especially while litigation is pending, courts may:
    • Refuse to weigh relative hardship in your favor; and
    • Order removal of costly, nearly completed structures.
  • Stopping Work Is Often the Better Strategy: Continuing construction after notice of a covenant violation increases both your financial exposure and the likelihood that a court will find unclean hands and deny equitable leniency.

C. For Litigators: Pleadings, Strategy, and Evidence

  • Plead Relative Hardship and Laches Explicitly: Until the Supreme Court squarely resolves Justice Parker’s concern, counsel should treat the relative‑hardship test as an affirmative defense and plead it under Rule 8(c). Laches must also be pleaded early, not for the first time in a post‑judgment motion.
  • Use Pretrial Briefing Thoughtfully: Dendy illustrates that issues fully argued in pretrial briefs and litigated without objection will be treated as if they were pleaded, under Rule 15(b).
  • Develop a Record on Good (or Bad) Faith: Because clean hands now plays a critical gatekeeping role, both sides should marshal evidence regarding:
    • What the violator knew and when;
    • Whether the violator sought to comply or stonewalled;
    • The plaintiff’s speed (or delay) in asserting rights; and
    • Any reliance by the violator on the plaintiff’s or governmental conduct.

D. Substantive Doctrine: The Post‑Cole / Englund / Dendy Landscape

Taken together, Cole, Englund, and Dendy shape a coherent, three‑step framework for enforcing restrictive covenants in Alabama:

  1. Default Rule – Strict Enforcement Clear, unambiguous covenants are enforceable by injunction upon breach, without a need to show actual damages (Laney, Tubbs).
  2. Equitable Safety Valve – Relative‑Hardship Test Even if a breach is proven, a court may decline or tailor injunctive relief if:
    • The covenant has lost substantial value or purpose as applied; or
    • The hardship to the violator is considerably disproportionate to the benefit to the enforcer (Lange, Cole).
  3. Gatekeeper – Clean‑Hands Doctrine A violator may be barred from invoking the safety valve if his conduct constitutes:
    • Willful, morally reprehensible misconduct in light of known facts (Weaver, Retail Developers, Englund, Dendy); not mere negligence;
    • In Englund, this threshold was not met, so the relative‑hardship test had to be applied;
    • In Dendy, the threshold was met, so the trial court could decline to apply relative hardship at all.

VI. Complex Concepts Simplified

  • Restrictive Covenant: A private rule written into a deed or subdivision declaration that limits how property can be used (e.g., “only single‑family homes,” “no fences over six feet,” or “must submit plans to architectural committee”).
  • Architectural Committee (AC): A body (often appointed by the developer or HOA) that reviews and approves building plans to ensure they meet neighborhood standards.
  • Constructive Notice: Legal fiction that people are deemed to know the contents of properly recorded documents (like covenants), even if they have not actually read them.
  • Ore Tenus Standard: When a trial judge hears live testimony, the appellate court defers to the judge’s factual findings unless they are plainly wrong or unjust.
  • Relative‑Hardship Test: An equitable balancing test: even if someone broke a covenant, a court may refuse an injunction if enforcing the covenant would cause that person far greater harm than the benefit enforcement would provide to the other side.
  • Clean‑Hands Doctrine: Rule that a party who has engaged in serious, willful wrongdoing related to the dispute cannot ask a court of equity for relief (or, here, for equitable defenses like relative hardship).
  • Affirmative Defense: A legal argument that, even if the plaintiff’s allegations are true, gives the defendant a reason to avoid liability (e.g., statute of limitations, laches, relative hardship). Must be expressly pleaded under Rule 8(c).
  • Laches: A defense claiming the plaintiff waited too long to sue, and that delay unfairly harmed the defendant.
  • Rule 15(b) Enlargement: If an unpleaded issue (like an unpleaded defense) is contested at trial without objection, the court treats it as if it had been properly pleaded.
  • Permanent Injunction: A final court order requiring a party to do or not do something (here, to stop unapproved construction and/or remove non‑conforming structures), granted only when certain equitable criteria are met.

VII. Conclusion

Dendy v. Ryan is a significant refinement of Alabama’s law governing restrictive covenants and equitable defenses. While Cole and Englund ensured that the relative‑hardship test remains alive and is not automatically defeated by a violator’s knowledge of a covenant, Dendy draws a clear line: those who engage in deliberate, willful, and morally reprehensible violations of known covenants—particularly by presenting one set of plans for approval and building another, and continuing to build after notice and during litigation—cannot expect equity’s mercy.

Procedurally, the decision underscores:

  • That affirmative defenses like relative hardship can be preserved through pretrial briefing and trial practice under Rule 15(b), even if omitted from the answer; but
  • That defenses first raised in post‑judgment motions, such as laches, are generally waived.

Substantively, Dendy reinforces a three‑tiered framework: (1) strict enforcement of clear covenants, (2) an equitable safety valve via the relative‑hardship test, and (3) a clean‑hands gatekeeper that denies that safety valve to willful wrongdoers. Justice Parker’s concurrence signals that the Court may, in a suitable future case, revisit the classification of relative hardship as an “affirmative defense” and further harmonize the law of injunctions.

For developers, homeowners, and HOAs in Alabama, the message is direct: recorded covenants and architectural controls are not optional suggestions, and strategic or deliberate noncompliance—especially continued building in defiance of known requirements—can result in the harshest equitable remedy: an order to tear down what has been built.

1 See Tipp v. JPMC Specialty Mortg., LLC, 367 So. 3d 357 (Ala. 2021); Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So. 3d 90 (Ala. 2010).

Case Details

Year: 2025
Court: Supreme Court of Alabama

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