Reaffirming the Primacy of “No-Waiver” Clauses in Planned Communities:
Carpenter v. Southbay Homeowners Association, 2025 ND 114

Introduction

Background. KJ Carpenter purchased a vacant lot in the Southbay development near Bismarck, North Dakota, subject to a recorded Declaration of Restrictions and Obligations (“DRO”). The DRO limits roofing materials to cedar shakes, cedar shingles, or earth-toned asphalt shingles unless the Architectural Review Committee (“ARC”) approves otherwise. After the ARC initially approved Carpenter’s plans with asphalt shingles, he sought to amend his plans to use a full metal roof. The ARC denied the amendment, prompting Carpenter to sue for approval, arguing that prior instances of metal roofing operated as a waiver of the restriction.

I​ssues on Appeal. Carpenter advanced three interrelated arguments:

• Past approvals of metal roofs barred the ARC from disapproving his request (“barred-by-past-approval” theory).
• The prior approvals constituted a waiver of the restrictive covenant (“implied-waiver” theory).
• The DRO’s “no-waiver” clause did not apply because those prior approvals were not breaches (“no-breach-no-clause” theory).

The district court granted summary judgment to the Southbay HOA; the North Dakota Supreme Court (Carpenter v. Southbay HOA, 2025 ND 114) affirmed and denied the HOA’s request for frivolous-appeal costs.

Summary of the Judgment

1. The ARC’s decision to deny a full metal roof is enforceable; the DRO unambiguously limits roofing materials, and the ARC’s discretionary interpretation allowing only partial metal roofs is binding under § 25 of the DRO.
2. Past ARC approvals of partial metal roofs do not waive the covenant because they were granted pursuant to the ARC’s interpretive authority and therefore were not breaches. Two unapproved full metal roofs are breaches, but the HOA’s inaction does not waive enforcement owing to the clear “no-waiver” clause (§ 22).
3. To override a contractual “no-waiver” clause, a challenger must demonstrate a clear intent to relinquish both (i) the restrictive provision and (ii) the clause itself. Carpenter produced no evidence of such a dual waiver.
4. The appeal was not frivolous, so costs and attorney’s fees were denied.

Analysis

Precedents Cited and Their Influence

• Wachter Development, Inc. v. Martin, 2019 ND 202 – Confirmed that restrictive covenants are interpreted under contract law and highlighted the enforceability of identical “no-waiver” language. The Court distinguished Wachter because (a) Carpenter argued the clause was wholly inapplicable, not merely unconscionable, and (b) the alleged waiver concerned ARC interpretations, not non-enforcement alone.
• Allen v. Minot Amusement Corp., 312 N.W.2d 698 (N.D. 1981) – Demonstrated that selective consent may be granted without waiving future enforcement when the consent expressly reserves rights. Carpenter relied on Allen to argue each ARC approval needed an explicit reservation, but the Court clarified that Allen did not mandate “magic words” and involved no separate “no-waiver” clause.
• Pool v. Denbeck, 241 N.W.2d 503 (Neb. 1976) & national authorities – Cited for general rules that minor or sporadic breaches do not bar enforcement; the Court used these principles when examining the two full metal roofs.
• Secondary authorities: Powell on Real Property; Williston on Contracts § 39:36 – Provided doctrinal support that a “no-waiver” clause can itself be waived only by evidence of clear intent.

Legal Reasoning

1. Contractual Interpretation. Restrictive covenants are construed as contracts. The DRO’s roofing clause is “clear and unambiguous,” so extrinsic evidence is unnecessary.
2. ARC’s Binding Interpretive Authority. § 25 of the DRO gives the ARC final say on construction interpretations. The ARC has consistently interpreted the covenant as allowing partial (accent) metal roofs but disallowing full metal roofs. That interpretation, once established, forms the benchmark for evaluating breach.
3. Distinguishing Approvals from Breaches. Because eight homes with partial metal roofs were approved, they are not breaches. Only two full-metal-roof homes constitute breaches, but the HOA’s non-action is expressly insulated by the “no-waiver” clause.
4. No-Waiver Clause Enforcement. The Court holds that such a clause is enforceable unless the party asserting waiver can show “clear intent” to relinquish the clause itself. Carpenter’s evidence showed only inconsistent enforcement, not a relinquishment of the clause.
5. Summary-Judgment Posture. With no genuine dispute of material fact—the documents, approvals, and roofing situations were undisputed—the case turned purely on law, making summary judgment proper.

Impact on Future Cases and Community Associations

• Fortifies No-Waiver Clauses. HOAs and developers can rely on no-waiver provisions to preserve enforcement flexibility, even after inconsistent or selective enforcement.
• Elevates ARC Interpretations. Where governing documents grant final interpretive authority to an ARC, courts will defer if the interpretation is facially reasonable and consistently applied.
• Raises Evidentiary Burden for Homeowners. Owners challenging restrictive covenants must now present evidence not only of widespread violations but also a clear intent by the HOA to relinquish its no-waiver rights.
• Lends Certainty to Planned Developments. The decision supports public policy favoring stability and predictability in covenant‐controlled communities.
• Strategic Guidance for HOAs. Associations should keep accurate approval records, clarify the scope of each variance, and reiterate that no approval waives future enforcement—to avoid even the appearance of waiver.

Complex Concepts Simplified

• Restrictive Covenant: A private land-use rule that “runs with the land,” binding future owners.
• Architectural Review Committee (ARC): A body designated to approve or disapprove construction plans to maintain aesthetic or economic standards.
• No-Waiver Clause: Contract language stating that overlooking one breach does not forfeit the right to enforce future breaches.
• Waiver vs. Breach: A breach is failure to comply with a covenant; a waiver is the knowing, intentional surrender of the right to enforce that covenant.
• Summary Judgment: A procedural tool that allows a court to resolve a case without trial when no material facts are disputed.

Conclusion

Carpenter v. Southbay HOA cements a critical rule for North Dakota’s common-interest communities: a clearly drafted “no-waiver” provision will ordinarily defeat claims that inconsistent enforcement has nullified a restrictive covenant—unless challengers can prove the HOA also intended to abandon the no-waiver protection itself. The decision affirms broad deference to ARCs endowed with final interpretive authority and clarifies that selective approvals, standing alone, do not create future entitlements for other owners. In the broader legal landscape, Carpenter strengthens contractual certainty in planned developments and signals that homeowners must marshal compelling evidence before courts will override explicit non-waiver language.