1
STATE OF MINNESOTA

IN SUPREME COURT

A21-0700

Court of Appeals Hudson, J.
Dissenting, Anderson, J., Gildea, C.J.
Windcliff Association, Inc.,

Respondent,

vs. Filed: April 19, 2023
Office of Appellate Courts
Aaron Breyfogle, et al.,

Appellants.

________________________

Ken D. Schueler, John T. Giesen, Dunlap & Seeger, P.A., Rochester, Minnesota, for
respondent.

Elizabeth J. Roff, Stellpflug Law PLLC, Minneapolis, Minnesota, for appellants.

________________________

S Y L L A B U S
1. If the language of a restrictive land use covenant is ambiguous, a court may
consider extrinsic evidence of the covenanting parties’ intent to resolve the ambiguity.
2. The interpretation of an ambiguous restrictive covenant is a question of fact
for a jury unless the extrinsic evidence is conclusive as to the covenanting parties’ intent;
the jury should be instructed to strictly construe an ambiguity in a restrictive covenant
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against a land use restriction only if the jury is unable to resolve the ambiguity from the
extrinsic evidence by a preponderance of the evidence.
3. Because the restrictive covenant at issue is ambiguous and the extrinsic
evidence does not conclusively resolve the ambiguity, the matter is remanded to the district
court for a properly instructed jury to decide the meaning of the restrictive covenant.
Affirmed.
O P I N I O N
HUDSON, Justice.
Appellants Aaron and Abby Breyfogle (the Breyfogles) are homeowners in a
common interest residential subdivision where lots are subject to restrictive land use
covenants. One restrictive covenant purports to limit the size of outbuildings on lots to
1,200 square feet. This appeal arises out of a dispute between the Breyfogles and their
homeowners’ association, respondent Windcliff Association, Inc., (the Association), which
argues that the Breyfogles’ newly constructed, 1,656-square- foot garage violates the
restrictive covenant. The Breyfogles argue that any ambiguity in the restrictive covenant
must be strictly construed against the land use restriction as a matter of law. The district
court, finding the covenant ambiguous, agreed with the Breyfogles’ position and granted
summary judgment in their favor. The court of appeals disagreed, concluding that the
interpretation of the restrictive covenant was a question of fact for a jury.
We hold that the interpretation of an ambiguous restrictive land use covenant is a
question for a jury unless extrinsic evidence proffered by the parties is conclusive as to
the covenanting parties’ intent. We further hold that a jury should strictly construe an
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ambiguity in a restrictive covenant against the land use restriction only if the jury is unable
to resolve the ambiguity from the extrinsic evidence by a preponderance of the evidence.
Because we agree with the court of appeals that the extrinsic evidence here does not
conclusively resolve the ambiguity in the restrictive covenant, we affirm the decis ion of
the court of appeals and remand to the district court for a jury to decide the meaning of the
restrictive covenant.
FACTS
The Breyfogles live in the Windcliff common interest residential subdivision in
Wabasha County, Minnesota. Properties in the subdivision are subject to restrictive land
use covenants contained in the Declaration Establishing Protective Covenants (Windcliff
Declaration). The Association administers the subdivision.
At issue in this case is a covenant in the Windcliff Declaration, which states that
“outbuildings shall have a maximum size of 1200 square feet (as per Wabasha County
zoning restriction).” At the time the covenant was adopted in 2003, applicable zoning
regulations in Wabasha County limited the size of accessory buildings detached from a
residential property to 1,200 square feet. That size restriction was repealed in 2015,
however.
In April 2019, the Breyfogles submitted to the Association plans to build a
1,656-square-foot unattached garage on their lot. The Association rejected the plans,
citing the covenant restricting outbuildings to a maximum size of 1,200 square feet.
The Breyfogles responded to the Association by asserting that the covenant was no longer
in force because the Wabasha County zoning regulation had been repealed. The
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Association countered by arguing that the repeal of the regulation did not impact the
validity of the covenant.
The Breyfogles decided to proceed with building the garage. They received a
building permit from the county in July 2019, and construction on the garage began that
month. The garage has since been completed.
In October 2019, the Association filed suit against the Breyfogles in Wabasha
County District Court, seeking to enforce the 1,200-square-foot size restriction in the
Windcliff Declaration. Moving for summary judgment, the Breyfogles asserted that the
covenant was unambiguous and required the Wabasha County zoning regulations to control
the interpretation of the covenant.
In support of this contention, the Breyfogles offered the deposition testimony and
affidavit of Sylvia Brown who, with her late husband Rodger Brown, developed the
Windcliff subdivision and drafted the Windcliff Declaration. In her affidavit, Brown
explained that she “intended the Covenants to comply with the Wabasha County zoning
ordinances in effect at the time of creation and included specific references to the zoning
ordinances to assure compliance with the zoning ordinances.” In her deposition testimony,
Brown explained that her intent in referencing the Wabasha County zoning restriction was
to tie the 1,200-square-foot restrictive covenant to the 1,200-square-foot zoning restriction
in place at the time, “in such a manner that the 1,200 square foot size restriction would be
inapplicable if [the zoning restriction was] repealed by” the county. This statement was
echoed in Brown’s affidavit.
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Moreover, the Breyfogles argued that even if the covenant were deemed ambiguous,
Minnesota law required the ambiguity in the restrictive covenant to be automatically
construed against the land use restriction as a matter of law.
In response, the Association argued that the covenant unambiguously limited the
size of outbuildings in the Windcliff subdivision to 1,200 square feet. Moreover, the
Association argued that Brown’s testimony did not conclusively establish that her intent
was for the county zoning regulations to control the meaning of the covenant. For example,
the Association reasoned that Brown could not have intended for the zoning regulation to
change the meaning of the covenant because in her deposition testimony, she stated that
she did not expect that the county would change the zoning regulation and assumed that all
lots in the subdivision would sell before any changes in zoning occurred. Moreover, when
asked if she contemplated that she was “going to have to change this 1200-square-foot
requirement for outbuildings,” Brown answered equivocally, stating, “Well, I didn’t plan
on it, no,” and “I don’t know.”
The district court granted summary judgment to the Breyfogles. The district court
first held that the language of the restrictive covenant was ambiguous. The district court
then looked to extrinsic evidence and held that Brown’s affidavit and deposition testimony,
when viewed in its entirety, conclusively established that the intent of the covenanting
parties was for the county zoning regulations to control the interpretation of the covenant.
The district court further held that even if Brown’s testimony did not conclusively establish
the meaning of the covenant, the court would be obliged to construe the ambiguous
covenant against the land use restriction as a matter of law.
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The Association appealed, and the court of appeals affirmed in part, reversed in part,
and remanded. See Windcliff Ass’n, Inc. v. Breyfogle, No. A21-0700, 2022 WL 152013,
at *1 (Minn. App. Jan. 18, 2022). The court of appeals agreed that the language of the
covenant was ambiguous. See id. at *2–3. However, the court of appeals disagreed that
Brown’s affidavit and deposition testimony conclusively established the meaning of the
covenant. Id. at *3. Moreover, the court of appeals disagreed with the Breyfogles’
argument that an ambiguous restrictive covenant must be automatically construed against
the land use restriction as a matter of law. Id. The court of appeals therefore concluded
that the interpretation of the covenant was a question of fact for the jury, and it reversed
the district court’s grant of summary judgment on that issue and remanded. Id. at *3–4.1
We granted the Breyfogles’ petition for review on whether a rule of strict
construction aga inst land use restrictions automatically applies to ambiguous restrictive
covenants as a matter of law.
ANALYSIS
This case comes to us on review of the district court’s grant of the Breyfogles’
motion for summary judgment. We review a district court’s grant of summary judgment
de novo and, in doing so, view the evidence in the light most favorable to the party against
whom the district court granted summary judgment. Henson v. Uptown Drink, LLC,
922 N.W.2d 185, 190 (Minn. 2019). Su mmary judgment is appropriate when there is no

1 With respect to the interpretation of another covenant not relevant to our grant of
review, the court of appeals affirmed the district court’s grant of summary judgment.
Windcliff Ass’n, 2022 WL 152013, at *4. The court of appeals also reversed, as premature,
an award of attorney fees by the district court. Id. at *4–5.
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genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. Minn. R. Civ. P. 56.01; Senogles v. Carlson , 902 N.W.2d 38, 42
(Minn. 2017).
I.
A.
When interpreting restrictive covenants, we have articulated the principle that
“[r]estrictive covenants are strictly construed against limitations on the use of property.”
Costley v. Caromin House, Inc., 313 N.W.2d 21, 26 (Minn. 1981) (citing Mission Covenant
Church v. Nelson, 91 N.W.2d 440, 442 (Minn. 1958)). This rule of strict construction is
rooted in the law’s preference for the free, unrestricted use of one’s property. See id.
However, we have also stated that covenants restricting the use of property “will be given
the full force and effect intended by the parties who created them . . . .” Klapproth v.
Grininger, 203 N.W. 418, 419 (Minn. 1925).
The rule of strict construction first appeared in our case law over a century ago. In
Godley v. Weisman, we found that the meaning of a restrictive covenant was “not free from
doubt.” 158 N.W. 333, 334 (Minn. 1916). Citing the rule of strict construction, the
landowner argued that the ambiguous restrictive covenant should be construed against the
restriction as a matter of law. Id. at 333. While acknowledging the vitality of the rule of
strict construction, we explained:
[I]f the rule stated by counsel means that, whenever the language of the
restriction is such as to suggest doubt, either slight or grave, as to the meaning
or extent of the alleged restriction, the court must forthwith forbear further
consideration of the case and deny relief, then we do not concur.

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Id. at 334. Rather, we stated that the “primary rule of interpretation” was “ ‘to gather the
intention of the parties from their words . . . and, where the meaning is doubtful, by
considering such surrounding circumstances as they are presumed to have considered when
their minds met.’ ” Id. (quoting Clarke v. Devoe, 26 N.E. 275, 276 (N.Y. 1891)).
Since Godley, we have continued to invoke the rule of strict construction in the
restrictive covenant context. In Mission Covenant Church, we sought to determine whether
a restrictive covenant on one parcel of land applied to another parcel of land. 91 N.W.2d
at 441–42. In doing so, we observed:
[W]e must keep in mind a rule frequently enunciated in this state to the effect
that inasmuch as the law leans in favor of the unrestricted use of property a
strained construction will not be adopted in favor of restrictions. There is
much authority that covenants and agreements restricting the free use of
property are strictly construed against limitations upon such use. Such
restrictions will not be aided or extended by implication or enlarged by
construction and doubt will be resolved in favor of the unrestricted use of
property.
Id. at 442 (citations omitted). Additionally, in Costley, we invoked the rule of strict
construction in interpreting the term “dwelling” in a restrictive covenant that limited lot
usage to “one dwelling and one garage.” See 313 N.W.2d at 26. Noting that “courts will
not adopt a strained construction in favor of restrictions,” we determined that a group home
for intellectually disabled individuals was a dwelling under the covenant. Id. We further
explained that the surrounding circumstances of the group home, such as the “single
housekeeping structure” and “the relatively permanent type of living situation,” reinforced
the conclusion that the group home was a “dwelling” under the covenant. Id.
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B.
This appeal requires us to determine how these cases should apply when a court
interprets an ambiguous restrictive covenant. Relying on the language of strict construction
in Mission Covenant Church and Costley, the Breyfogles argue that once a court finds a
restrictive covenant ambiguous, the court should automatically construe the covenant
against the land use restriction as a matter of law, without reference to any extrinsic
evidence to further determine the intent of the covenanting parties. In contrast, the
Association relies on Godley to assert that general rules of contract interpretation apply to
interpreting ambiguous restrictive covenants, and that the rule of strict construction should
play no role in interpreting ambiguous restrictive covenants.
Neither position is entirely correct. On one hand, our precedent forecloses the
Association’s argument that there is no place for the rule of strict construction in Minnesota
law. In the primary case relied upon by the Association—Godley —we explained that “it
is undoubtedly the rule that” ambiguities in restrictive covenants are construed against the
party seeking enforcement of the covenant.
158 N.W. at 334.
Moreover, we have continued to invoke the rule of strict construction over the past
century. See Costley, 313 N.W.2d at 26; Mission Covenant Church, 91 N.W.2d at 442.
And we have long adhered to the principle that the law favors the rights of the property
owner to use her land as she wishes. See Frank’s Nursery Sales, Inc. v. City of Roseville,
295 N.W.2d 604, 608–09 (Minn. 1980). The Association offers no reason why we should
reject this principle other than an “emerging modern view” that the rule of strict
construction should be abandoned. But as the Breyfogles correctly note, a majority of
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states still retain some form of the rule of strict construction. Therefore, we conclude that
the rule of strict construction continues to apply to the interpretation of ambiguous
restrictive covenants.
On the other hand, the Breyfogles’ argument that ambiguous restrictive covenants
are automatically construed against the land use restriction runs counter to our precedent
on several fronts.
First, Godley squarely rejects this view, holding that a court should not “forbear
further consideration of the case” and automatically apply the rule of strict construction if
it finds that a restrictive covenant is ambiguous. 158 N.W. at 334. The Breyfogles argue
that Godley is irrelevant because it did not deal with an ambiguous restrictive covenant,
but instead with one “not free from doubt,” which the Breyfogles consider to be a lower
threshold than “ambiguity.” This is a distinction without a difference, as Godley
recognized that its observation applied to restrictive covenants afflicted with “doubt, either
slight or grave.” 158 N.W. at 334.
The Breyfogles alternatively argue that Mission Covenant Church and Costley
superseded Godley. But both of those cases were unclear on where in the interpretative
process the rule of strict construction comes into play, negating any suggestion that those
cases superseded Godley. In fact, Costley implicitly followed Godley by considering the
“surrounding circumstances” in interpreting an ambiguous restrictive covenant to “gather
the intention of the parties.” Godley , 158 N.W. at 334; see Costley, 313 N.W.2d at 26.
And Mission Covenant Church did not concern the issue in Godley—the interpretation of
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a covenant’s meaning—but rather the question of whether a covenant existed at all. See
Mission Covenant Church, 91 N.W.2d at 442–44.2
Second, the adoption of the Breyfogles’ rule would conflict with our general
practice that contract interpretation tools should be used to interpret restrictive covenants.
See Snyder’s Drug Stores, Inc. v. Sheehy Props., Inc., 266 N.W.2d 882, 884 (Minn. 1978)
(explaining that a restrictive covenant in a lease “should be interpreted no differently than
other writings”); In re Turners Crossroad Dev. Co., 277 N.W.2d 364, 368–69 (Minn. 1979)
(interpreting a restrictive covenant using the rules of contract construction). Under general
rules of contract interpretation, ambiguities in a contract are resolved by admitting extrinsic
evidence of “the facts and circumstances surrounding the transaction” to reveal the parties’
intent. Donnay v. Boulware, 144 N.W.2d 711, 715 (Minn. 1966).
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2 The Breyfogles also invite us to overrule Godley to the extent it conflicts with an
automatic rule of strict construction for ambiguous restrictive covenants. But because
Godley’s approach is in accord with our modern trend in using contract interpretation tools
to interpret restrictive covenants, we decline that invitation.

3 Focusing exclusively on Godley, Mission Covenant Church, and Costley, the dissent
protests that the tools of contract interpretation should not apply to ambiguous restrictive
covenants. That position clearly conflicts with our holdings in Snyder’s Drug Stores and
Turners Crossroad. And despite the dissent’s attempt to distinguish those cases as
covenant not to compete cases, the reality is that the covenants in those cases both involved
restrictions on the use of land, just like the covenant in this case. See Snyder’s Drug Stores,
266 N.W.2d at 883 (covenant prohibited a business operating in “the sale of food products
for consumption on the premises or the sale of drugs or medicines” of the same type as the
lessee on the land); Turners Crossroad, 277 N.W.2d at 367, 369 (covenant prohibited the
sale of liquor and food on the land except for the kinds typically sold at a baseball game).
Moreover, the dissent offers no authority for its novel conclusion that the rules of
interpretation depend on whether we are interpreting covenants that apply to commercial,
as opposed to residential, property.
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Our precedents reflect a resistance to using the blunt tools of interpretive canons to
dispositively resolve ambiguities in contractual language. 4 See Turner v. Alpha Phi
Sorority House, 276 N.W.2d 63, 66–67 (Minn. 1979) (explaining that the rule of strict
construction against the drafter “does not . . . ineluctably lead to the conclusion that the
drafter is to lose”); see also Staffing Specifix, Inc. v. Tempworks Mgmt. Servs., Inc.,
913 N.W.2d 687, 693– 94 (Minn. 2018). Recently, we explained in Staffing Specifix that
the rule of strict construction against a contract’s drafter (that is, contra proferentem),
should be applied “only after an attempt is made to determine the parties’ intent behind an
ambiguous term, using extrinsic evidence if available.” 913 N.W.2d at 694. This rule
resonates in the restrictive covenant context, as we have long held that we strive to give
covenants “the full force and effect intended by the parties who created them . . . .”
Klapproth, 203 N.W. at 419; see also LaValle v. Kulkay, 277 N.W.2d 400, 403 (Minn.
1979) (same); Rose v. Kenneseth Israel Congregation, 36 N.W.2d 791, 798 (Minn. 1949)
(same).

4 The dissent notes two related exceptions: we will automatically construe ambiguous
exculpatory and indemnification clauses against the party benefiting from the exoneration.
See Dewitt v. London Rd. Rental Ctr., Inc., 910 N.W.2d 412, 416–17 (Minn. 2018) (holding
that indemnification clauses that are ambiguous in scope are unenforceable under strict
construction); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982) (holding
that exculpatory clauses that are ambiguous in scope are unenforceable under strict
construction). However, the dissent fails to note that we have recognized a weightier public
interest in strictly construing exculpatory and indemnification clauses because, unlike
restrictive land use covenants, exculpatory and indemnification clauses prescribe the severe
outcome of “reliev[ing] one party of the obligation to use due care” and “shift[ing] liability
to innocent parties.” Justice v. Marvel, LLC , 979 N.W.2d 894, 900–01 (Minn. 2022)
(citations omitted) (internal quotation marks omitted).
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In sum, the rule most consonant with our precedent is that the rule of strict
construction against land use restrictions should be applied to ambiguous restrictive
covenants only after attempting to discern the parties’ intent, using extrinsic evidence if
available.
II.
Notwithstanding our precedent applying contract interpretation principles to
restrictive covenants, the Breyfogles offer a number of reasons why this should not be so.
First, the Breyfogles and the dissent assert that while contract interpretation tools apply to
writings involving parties with equal bargaining power, restrictive covenants involve
parties with unequal bargaining power because covenants are “drafted by a developer and
forced upon owners.” This assertion misstates the law. Proof that a party lacked the
opportunity to negotiate the terms of a contract is not alone enough to show a disparity of
bargaining power. See Hauenstein & Bermeister, Inc. v. Met-Fab Indus., Inc., 320 N.W.2d
886, 891 (Minn. 1982). And as the Breyfogles recognize, homeowners can always
persuade a homeowners’ association to amend a restrictive covenant, showing that
homeowners like the Breyfogles are not simply at the mercy of a developer’s chosen
covenants.
Second, the Breyfogles argue that while it is “expected and equitable” to strictly
enforce contractual terms between original contracting parties, this expectation is not the
case for restrictive covenants, where the litigants may be distant and remote from the
original covenanting parties. But this argument overlooks the whole purpose of restrictive
covenants. Restrictive covenants are meant to run with the land, such that the “successors
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or assigns will be bound by the terms of the covenant” in the same manner as the original
covenanting parties. Turners Crossroad , 277 N.W.2d at 369. It is therefore neither
unexpected nor inequitable that future landowners, who stand in the shoes of the original
covenanting parties, are held to the same land use restrictions as the original covenanting
parties.
Third, the Breyfogles submit that the “strong public policy interest of free use of
property” overrides the usual rules of contract construction. The dissent echoes this
sentiment, strenuously arguing that our holding today “does not adequately protect the right
to free and unrestricted property use.” We disagree, as we can respect this public policy
by affirming the validity of the rule of strict construction without contradicting our
precedent applying contract interpretation rules to ambiguous covenants.
The Breyfogles finally offer several policy arguments for why ambiguous restrictive
covenants should be automatically construed against the land use restriction; none are
availing. The Breyfogles argue that as a governing body, the Association must adhere to
federal due process guarantees, and that “enforcing a land use restriction that the owner
had no actual notice of runs afoul of due process.” But the Association is not a state actor
and therefore not subject to the strictures of the Due Process Clause. See State v. Wicklund,
589 N.W.2d 793, 801 (Minn. 1999) (explaining that state and federal constitutional
protections are triggered only by state action).
The Breyfogles also argue that their rule would simplify the process of interpreting
ambiguous restrictive covenants, discouraging litigation among neighbors and saving
landowners “discovery or trial expenses.” But this rule respects only the landowner’s
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perspective. On the other side of the coin, such a rule defeats the legitimate expectations
of neighbors that the “full force and effect” of a covenant will be carried out. Klapproth,
203 N.W. at 419.
Lastly, the Breyfogles observe that most states retain a rule strictly constr uing
ambiguous restrictive covenants against limitations on land use. But a closer inspection of
the cases cited by the Breyfogles reveal that in most of the cited jurisdictions, the rule of
strict construction does not preclude an examination of extrinsi c evidence to resolve the
ambiguity in the restrictive covenant. See, e.g., Yogman v. Parrott, 937 P.2d 1019,
1022–23 (Or. 1997) (applying the rule of strict construction only after examination of
extrinsic evidence of the parties’ intent did not resolve the ambiguity); see also, e.g.,
DuTrac Cmty. Credit Union v. Radiology Grp. Real Est., L.C., 891 N.W.2d 210, 216
(Iowa 2017) (explaining that extrinsic evidence is admissible to interpret the parties’ intent
in an ambiguous restrictive covenant); River Dale Ass’n v. Bloss, 901 A.2d 809, 811
(Me. 2006) (holding that “extrinsic evidence may be consulted to ascertain the grantor’s
intent” if a restrictive covenant is ambiguous).
In sum, these public policy arguments do not undermine our conclusion that the rule
of strict construction against land use restrictions should be applied to ambiguous
restrictive covenants only after attempting to discern the parties’ intent with extrinsic
evidence.
Therefore, courts interpreting the language of a restrictive covenant should begin by
determining whether the language of the covenant is ambiguous—that is, “susceptible to
two or more reasonable interpretations.” Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 582
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(Minn. 2010). If the language of the covenant is ambiguous, the court may consider
extrinsic evidence of the covenanting parties’ intent; however, the court may not grant
summary judgment unless the extrinsic evidence is “conclusive” as to the parties’ intent.
Donnay, 144 N.W.2d at 716. If the extrinsic evidence is not conclusive as to the parties’
intent, the interpretation of the ambiguous covenant is a question of fact for the jury. Id.
In cases when the interpretation of an ambiguous covenant is submitted to a jury, the jury
should be instructed that it should attempt to resolve the ambiguity from the extrinsic
evidence. The jury should be further instructed that if it is unable to resolve the ambiguity
from the extrinsic evidence by a preponderance of the evidence, it should then apply the
rule of strict construction and construe the ambiguity in the covenant against the land use
restriction.
5 See Staffing Specifix, 913 N.W.2d at 694 (recognizing that a party must offer
extrinsic evidence to the jury that proves the meaning of ambiguous language by a
preponderance of the evidence).
III.
Having determined the proper process for interpreting ambiguous restrictive
covenants, we now apply that process here. The court of appeals determined that the
restrictive covenant at issue is ambiguous, and that holding was not challenged on appeal.
Windcliff Ass’n, 2022 WL 152013, at *2–3. Therefore, we attempt to ascertain the intent
of the covenanting parties by examining extrinsic evidence of “the facts and circumstances

5 We highlight the fact that at no point should a court apply the rule of strict
construction where extrinsic evidence exists regarding an ambiguous restrictive covenant.
Rather, the rule of strict construction is a tool for the jury if it is unable to resolve the
ambiguity from the extrinsic evidence by a preponderance of the evidence.
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surrounding the transaction.” Donnay, 144 N.W.2d at 715. The interpretation of an
ambiguous covenant is a question of fact for the jury unless the extrinsic evidence is
conclusive. Id. at 716.
Here, the extrinsic evidence offered by the parties centered on the deposition
testimony and affidavit of Sylvia Brown. 6 The district court found that Brown’s affidavit
and deposition testimony conclusively established the intent of the covenant’s drafters.
The court of appeals disagreed.
We agree with the court of appeals. To be sure, Brown’s deposition testimony and
affidavit include evidence in favor of the Breyfogles’ interpretation of the covenant.
Brown is clear that she intended to reference the Wabasha County zoning regulations with
the covenant’s parenthetical language, and in most of Brown’s testimony, she states that
her intent was to tie the restrictive covenant’s meaning to the county zoning regulations.
These statements are confirmed in Brown’s affidavit.

6 Although the Breyfogles address how we should dispose of this matter under the
summary judgment framework, the Association argues that “how Sylvia Brown’s
deposition testimony should be weighed” is not before us and requests supplemental
briefing on this issue. But having decided that the rule of strict construction does not
automatically apply to the covenant as a matter of law, we must examine Brown’s
testimony under the summary judgment standard to provide a final disposition of this case.
Moreover, we see no need for supplemental briefing, given that both parties briefed how
Brown’s testimony should be weighed before the district court and the court of appeals,
and both courts decided the issue. Therefore, the task of applying the summary judgment
standard to Brown’s testimony is adequately preserved for review. See George v. Est. of
Baker, 724 N.W.2d 1, 8 (Minn. 2006) (holding that although appellant did not artfully raise
an issue in his petition for review, the issue was adequately preserved for review because
it had been presented to the district court and court of appeals).
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However, we must view the evidence in the light most favorable to the party against
whom summary judgment was granted—here, the Association. See Henson, 922 N.W.2d
at 190. In her deposition testimony, Brown made several statements that, when viewed in
the light most favorable to the Association, cast doubt on whether she intended the county
zoning ordinances to affect the meaning of the restrictive covenant.
For example, Brown explained that at the time of the covenant’s drafting, she did
not expect that the county zoning regulations would change, undermining her assertion that
her intent was to have the covenant’s meaning change with the county zoning ordinances.
Most critically, when asked if she contemplated that she was “going to have to change this
1200-square-foot requirement for outbuildings,” Brown answered first, “Well, I didn’t plan
on it, no,” and then “I don’t know.” Although a reasonable jury could consider these
comments as outliers from the core of Brown’s testimony, a reasonable jury could also
conclude that they critically undermine Brown’s other statements that she intended to tie
the covenant’s meaning to the county zoning regulations. It is not for us to weigh these
competing inferences on a motion for summary judgment. Senogles, 902 N.W.2d at 42 ;
see also Donnay, 144 N.W.2d at 716 (“It is generally recognized that summary judgment
is not appropriate where the terms of a contract are at issue and any of its provisions are
ambiguous or uncertain.”). Viewed in the light most favorable to the Association, the
evidence does not conclusively establish Brown’s intent in drafting the covenant. The
interpretation of the covenant is therefore a question of fact for the jury. See Donnay,
144 N.W.2d at 716.
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Therefore, we remand this matter to the district court for a jury to decide the
meaning of the ambiguous restrictive covenant. The jury should be instructed that it should
attempt to resolve the ambiguity from the extrinsic evidence offered by the parties. The
jury should be further instructed that if it is unable to resolve the ambiguity from the
extrinsic evidence by a preponderance of the evidence, it should apply the rule of strict
construction and construe the ambiguity in the covenant against the land use restriction.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals and remand
to the district court for proceedings consistent with this opinion.
Affirmed.
D-1
D I S S E N T
ANDERSON, Justice (dissenting).
I respectfully dissent.
We have consistently reiterated that “restrictive covenants are strictly construed
against limitations on the use of property.” Costley v. Caromin House, Inc., 313 N.W.2d
21, 26 (Minn. 1981) ; see also Godley v. Weisman, 158 N.W. 333, 334 (Minn. 1916);
Mission Covenant Church v. Nelson, 91 N.W.2d 440, 442 (Minn. 1958). This rule of
strictly construing restrictive covenants protects the “ ‘natural right to the free use and
enjoyment of property and against restrictions.’ ” Godley, 158 N.W. at 334 (quoting
Schoonmaker v. Heckscher, 157 N.Y.S. 75, 77 (N.Y. App. Div. 1916)). The question
presented here is whether we meant what we said in our previous decisions announced over
the last century, and I conclude we did. I would reverse the court of appeals and affirm the
district court.
Strictly construing restrictive covenants and documents controlling land use is not
new to Minnesota. See Godley, 158 N.W. at 334; see also Int’l Lumber Co. v. Staude, 175 N.W. 909, 911 (Minn. 1919) (explaining that any ambiguity in a deed should be
“resolved in favor of the grantee, and a reservation in favor of the grantor is to be construed
more strictly than a grant”); Kettle River R.R. Co. v. Eastern Ry. Co., 43 N.W. 469, 473
(Minn. 1889) (acknowledging that the granting of an exclusive right of way for railroad
purposes to a party and its successors or assigns was “in derogation of common right, [and]
should receive a strict construction”). We also have regularly applied this rule when
evaluating zoning ordinances—holding that a zoning ordinance “should be construed
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strictly against the city and in favor of the property owner” and that “any restriction on land
use must be clearly expressed.” Chanhassen Ests. Residents Ass’n v. City of Chanhassen,
342 N.W.2d 335, 340 (Minn. 1984); see Mendota Golf, LLP v. City of Mendota Heights,
708 N.W.2d 162, 172 (Minn. 2006) (“[W]e narrowly construe any restrictions that a zoning
ordinance imposes upon a property owner.”); see also 3 Kenneth H. Young, Anderson’s
American Law of Zoning § 18.04 (4th rev. ed. 1996) (“The consistent emphasis of the
courts is upon the right of a landowner freely to use his property unless the limitations upon
such use are clearly articulated.”). Additionally, a rule of strict construction is not unique
to Minnesota as multiple jurisdictions have articulated this rule, or some version of it, and
acknowledged that the law favors the free and unrestricted use of property. See, e.g.,
Premium Point Park Ass’n v. Polar Bar, 119 N.E.2d 360, 362 (N.Y. 1954); Sainani v.
Belmont Glen Homeowners Ass’n, 831 S.E.2d 662, 666 (Va. 2019); Forrest Const., Inc. v.
Milam, 43 S.W.3d 140, 145 (Ark. 2001); Smith v. Ledbetter, 961 So. 2d 141, 145–46 (Ala.
Civ. App. 2006); Cooper River Plaza E., LLC v. Briad Grp., 820 A.2d 690, 695–96 (N.J.
Super. Ct. App. Div. 2003) (concluding a district court should not resort to extrinsic
evidence when a restrictive covenant is ambiguous and subsequent purchasers lacked
notice of the restriction).
The principle of protecting the right of a landowner to use property freely arises out
of the more fundamental principle of valuing the right to property—a right protected under
the constitutions of both the United States and the State of Minnesota. See U.S. Const.
amend. V; Minn. Const. art. I, § 13; see also Cedar Point Nursery v. Hassid, 594 U.S. ___,
141 S. Ct. 2063, 2071 (2021) (“The Founders recognized that the protection of private
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property is indispensable to the promotion of individual freedom. As John Adams tersely
put it, ‘[p]roperty must be secured, or liberty cannot exist.’ ” (quoting Discourses on
Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851))). “Property rights are
necessary to preserve freedom, for property ownership empowers persons to shape and to
plan their own destiny in a world where governments are always eager to do so for them.”
Murr v. Wisconsin, 582 U.S. ___, 137 S. Ct. 1933, 1943 (2017).
Moreover, the fact that restrictive covenants may bind subsequent successors
highlights the need for a rule of strict construction to appropriately uphold the right to use
property freely. See Cooper River Plaza, 820 A.2d at 696 (noting that binding a subsequent
party to ambiguous terms is “inconsistent with principles of contract law, which require
sufficient definiteness of terms so that the performance required of each party can be
ascertained with reasonable certainty, as well as knowledge of and acquiescence in the
stated terms”).
The court acknowledges our law requires the application of the rule of strict
construction to ambiguous restrictive covenants. In an effort to implement this
longstanding rule, the court uses a procedure that significantly limits, if not practically
eliminates, the rule of strict construction. Following a determination that an ambiguity
exists, the court would ask the jury to determine the intent of the parties based on whatever
external facts and evidence is introduced by the parties, and only then apply a tiebreaker in
favor of the party opposing the restriction if the jury cannot determine the intent of the
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parties by a preponderance of the evidence. 1 This procedure essentially puts a property
owner, who in the circumstances of our dispute here had no voice in the initial negotiations
leading to the creation of the restrictive covenants, in the same position as any original
party to a regular contract negotiated by parties of relatively equal sophistication and
bargaining power. See Staffing Specifix, Inc. v. TempWorks Mgmt. Servs., Inc.,
913 N.W.2d 687, 693 (Minn. 2018). Staffing Specifix recognized that “[i]n cases involving
parties of relatively equal sophistication and bargaining power, we have always treated
contra proferentem as a supporting—not deciding—rationale,” under which circumstances
“extrinsic evidence must be considered before ambiguous terms are construed against the
drafter.” Id. (emphasis added). The court has now extended the tiebreaking rule from
Staffing Specifix—which serves only a “supporting” role after extrinsic evidence must first
be considered— to the context of restrictive covenants irrespective of whether the original
party to the contract is now the party disputing the restriction, or whether the property
owner was of relatively equal sophistication and bargaining power to the developer. Id.
This provides minimal protection to property owners and does not adequately protect the
right to free and unrestricted property use.
In 1916, we agreed that courts should “naturally lean in favor of the freedom of the
property,” and a restriction on property must “be construed most favorably to the one

1 It is worth noting that the district court specifically asked counsel for both parties
whether there was any need for a jury, and the parties told the district court there was
nothing left for the jury to decide.
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against whom [the restriction] is to be enforced.” Godley, 158 N.W. at 334 (citation
omitted) (internal quotation marks omitted).
In Godley, the party challenging the restrictive covenant argued that “where the right
of a complainant to relief by the enforcement of a restrictive covenant is doubtful, the doubt
should be resolved against the restriction and relief denied.” Id. at 333. We recognized
that “the mere statement that the language of a deed is not free from doubt does not
necessitate an order of judgment for defendant.” Id. at 334. But we stated that “it is
undoubtedly the rule that . . . the restriction shall be construed most favorably to the one
against whom it is to be enforced.” Id. (citation omitted) (internal quotation marks
omitted). Nowhere in Godley did we suggest a role for the jury in interpreting a restrictive
covenant. We stated that:
The primary rule of interpretation is “to gather the intention of the parties
from their words, by reading, not simply a single clause of the agreement,
but the entire context, and, where the meaning is doubtful, by considering
such surrounding circumstances as they are presumed to have considered
when their minds met.”

Id. (quoting Clarke v. Devoe, 26 N.E. 275, 276 (N.Y. 1891)). The phrase, “by considering
such surrounding circumstances,” is explained in Williston on Contracts, section
32:7: “Ordinarily, the circumstances surrounding the execution of a contract may always
be shown and are relevant to a determination of what the parties intended by the words
they chose.” 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts
§ 32:7 (4th ed. 2012). Williston then explains that this interpretation does not run afoul of
the parol evidence rule because:
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‘[S]urrounding circumstances’ do not embrace either the prior or
contemporaneous collateral agreements of the parties or their understanding
of what particular terms in their agreement mean. Rather, the term refers to
the commercial or other setting in which the contract was negotiated and
other objectively determinable factors that give a context to the transaction
between the parties.

Id.
Thus, the reference to “surrounding circumstances” in Godley, aligns with a rule
that requires a district court to invalidate a restriction of property if the court interprets the
covenant to be ambiguous. Our decision in Godley does not require us to apply a weak
rule of strict construction, nor do our decisions that reiterated and reaffirmed the rule. See
Costley, 313 N.W.2d 21; Mission Covenant Church, 91 N.W.2d 440. In both Costly and
Mission Covenant Church, we reaffirmed the understanding that the law disfavors
restrictions of the use of property. Costley, 313 N.W.2d at 26; Mission Covenant Church,
91 N.W.2d at 442–43.
The court asserts that the position articulated by the dissent conflicts with our
holdings in Snyder’s Drug Stores, Inc. v. Sheehy Properties, Inc., 266 N.W.2d 882, 884
(Minn. 1978) and In re Turners Crossroad Development Co., 277 N.W.2d 364, 368– 69
(Minn. 1979). I do not agree. We are faced here with a question of first impression; none
of the decisions cited by the court or the dissent deal directly with construing an ambiguous
provision contained in a declaration establishing protective covenants governing a
residential subdivision. Snyder’s Drug Stores was about a “covenant against competition”
in a lease agreement. 266 N.W.2d at 884. We noted that the underlying purpose of this
type of covenant is to “protect the lessee from competition.” Id. at 885. The parties were
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sophisticated business entities negotiating with each other over provisions in a commercial
lease agreement; here, as is usually the case with traditional real estate covenants restricting
residential homeowners from using their own property in various ways, there were no
negotiations to be had. Turners Crossroad is inapplicable because it dealt with restrictions
in an agreement that the district court expressly concluded was not ambiguous.
277 N.W.2d at 369. We do not know what the holding in Turners Crossroad would have
been with an ambiguous restriction; but at a minimum, our discussion in Turners
Crossroad does not dictate the court’s new method of dealing with ambiguous land use
restrictions. Snyder’s Drug Stores and Turners Crossroad simply are not dispositive here.
More generally, it is inapposite to apply contract-oriented decisions like Snyder’s
Drug Stores, Turners Crossroad, and Staffing Specifix to restrictive covenants purporting
to indefinitely control the use of real estate; real estate development declarations are often
not classic bargained-for contractual arrangements. Scholars have noted that restrictive
covenants like the Declaration in this dispute, present unique challenges. Cf. Andrea J.
Boyack, Common Interest Community Covenants and the Freedom of Contract Myth,
22 J.L. & Pol’y 767, 770 (2014) (“The covenants [in common interest communities] are
perpetual, non-negotiable contracts of adhesion, bundled with one of the most personal,
expensive, and complicated purchases an individual will ever make —the purchase of a
home.”).
One of the fundamental differences between real estate covenants and general
contractual arrangements is disparity in bargaining power. When significant disparities in
bargaining power exist and we are faced with interpreting contractual provisions, we have
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looked to the relative bargaining position of the parties. See Yang v. Voyagaire
Houseboats, Inc., 701 N.W.2d 783, 789, 791 (Minn. 2005) (considering disparity in
bargaining power for exculpatory and indemnity clauses); Hauenstein & Bermeister, Inc.
v. Met-Fab Indus., Inc., 320 N.W.2d 886, 891 (Minn. 1982) (analyzing bargaining power
to determine the reasonableness of a forum selection clause); Staffing Specifix, 913 N.W.2d
at 693 (considering the sophistication and bargaining power of the parties for applying the
canon of contra proferentem, the rule in which ambiguous contract terms are construed
against the drafter). Interpreting an ambiguous real estate restriction in a recorded real
estate covenant for a residential subdivision in favor of the homeowner who had no
opportunity to negotiate any of the terms binding that property owner is consistent with
what we said in Godley, that a restriction on property must “be construed most favorably
to the one against whom [the restriction] is to be enforced.” Godley, 158 N.W. at 334
(citation omitted) (internal quotation marks omitted). Such an interpretation is also
consistent with the unique features of recorded declarations imposed by the original
developer. Cf. Boyack, supra, at 796 (arguing that declarations in common interest
communities are adhesion contracts); Stewart Sterk, Minority Protection in Residential
Private Governments, 77 B.U. L. Rev. 273, 277–78 (1997) (“Most common interest
communities are created by a single developer, not by agreement among neighboring
landowners.”); Uriel Reichman, Residential Private Governments: An Introductory
Survey, 43 U. Chi. L. Rev. 253, 286 (1976) ( noting that “the developer possesses nearly
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absolute control over the community”).2 Given the unique challenges and values presented
by restrictive covenants like the Declaration in this covenant, a different rule of
interpretation is necessary than that for general contractual arrangements.
We have already recognized this need to strictly construe contracts involving
unique contracting situations in the context of contracts containing indemnification
and exculpatory clauses. Automatically construing ambiguous indemnification and
exculpatory clauses against the party benefitting from the exemption overrides typical rules
of contract interpretation because of the first principles at play in those circumstances —
the law’s disfavor in exonerating a party from liability. See Dewi tt v. London Rd. Rental

2 The adhesive nature of this “contractual” relationship is illustrated by some of the
specific provisions in the recorded Declaration Establishing Protective Covenants
governing the lot and home owned by the Breyfogles. Those provisions included
restrictions that stated:

The Declarants, for the benefit of the land described on said Exhibit “A” and
its present and future owners, hereby imposes upon the land described on
Exhibit “A”, the following conditions, restrictions, covenants and charges
which shall run with the land and be binding upon and inure to the benefit of
the owners thereof, their heirs, successors, administrators, grantees, assigns,
mortgagees and lessees for a period of time as described in paragraph 20
below.

Paragraph 20 states:

The above covenants, conditions and restrictions shall run with the land and
be binding upon all parties and persons claiming by, through, and under
them. The Declarants shall remain in control of the Covenants as long as
Declarants have any ownership interest in the land described in Exhibit “A”
and until Declarants have received full and final payment thereof. Thereafter
these covenants shall renew automatically for successive periods of five (5)
years unless within thirty (30) days before or after anniversary date of any of
the aforementioned renewals, the then owners of at least 60% of the lots
execute, sign and file an agreement to the contrary.
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Ctr., Inc., 910 N.W.2d 412, 416 (Minn. 2018) (applying a rule of strict construction to an
ambiguous indemnification provision because “we disfavor agreements seeking to
indemnify the indemnitee for losses occasioned by its own negligence” (citation omitted)
(internal quotation marks omitted)); Solidification, Inc. v. Minter , 305 N.W.2d 871, 873
(Minn. 1981) (applying a rule of strict construction to exculpatory clauses); Eng’g &
Constr. Innovations, Inc. v. L.H. Bolduc Co. , 825 N.W.2d 695, 705 (Minn. 2013) (“We
resolve ambiguous terms against the insurer, and construe such terms in favor of providing
coverage to the insured.”).
Similarly, we recently invalidated language in an exculpatory clause that clearly
prohibited “any and a ll claims” simply because the “negligence” of the operator was
not included. Justice v. Marvel, LLC, 979 N.W.2d 894, 901–02 (Minn. 2022). We
acknowledged “that ‘strict construction’ in one sense means resolving ambiguity by
adopting ‘the narrowest, most literal meaning of the words without regard for context
and other permissible meanings.’ ” Id. at 901 (quoting Strict Interpretation, Black’s Law
Dictionary (11th ed. 2019)). But we then applied an even more stringent rule of strict
construction than the one advocated here by holding that “an exculpatory clause must use
specific, express language that clearly and unequivocally states the contracting parties’
intent,” regardless of whether the language is unambiguous. Id. (citation omitted) (internal
quotation marks omitted). A dispute involving an ambiguous restrictive real estate
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covenant is no different—limitations on the use of property, like exonerating a party from
liability, is not favored in the law, and thus compels a rule of strict construction. 3
Property rights inure not only to the wealthy and powerful, but also to the highly
leveraged first-time owner of a townhouse in a modest neighborhood; the former is
well-positioned to endlessly litigate ambiguous terminology under the formula proposed
by the court, the latter not so much.
Concluding that an ambiguous restrictive real estate covenant is not enforceable
does not cast doubt upon the validity of restrictive covenants. Covenants imposing
restrictions upon the use of property “will be given the full force and effect intended by the
parties who created them, and where the language used is clear and unambiguous it will be
given its obvious meaning.” Klapproth v. Grininger, 203 N.W. 418, 419 (Minn. 1925)
(citing Godley, 158 N.W. 333). But a restriction on the use of property may only be applied
when the restriction is clear and unambiguous.
The court is rightly concerned with maintaining consistency in the manner in which
we interpret and enforce contracts. I share that concern. Here, however, given legal
principles protecting real property rights that predate the current dispute by more than a
century and the nature, extent and adhesion characteristics of recorded real estate

3 The court claims that reliance on the exceptions pertaining to indemnification and
exculpatory clauses is misguided because those exceptions protect a “weightier” public
interest. “Weightier” is in the eye of the beholder; property interests are protected by both
the state and federal constitutions, a protection not enjoyed by contractual indemnity and
exculpatory provisions. See U.S. Const. amend. V; Minn. Const. art. I, § 13.
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covenants, I would reverse the court of appeals and affirm the district court. The district
court properly handled the interpretation of the restrictive covenant.
Because the restrictive covenant is ambiguous, the Breyfogles are entitled to
summary judgment as provided by our rule of strict construction in the context of restrictive
covenants governing the use of, and that run with, the land.

GILDEA, Chief Justice (dissenting).
I join in the dissent of Justice Anderson.