(concurring and dissenting):
I concur in the majority opinion except in that part dealing with waiver by the Association of its right to enforce the restrictive covenants. I would remand the case to the trial court for more definite findings of fact on that issue.
In paragraph 12 of his complaint, the plaintiffs alleged that the Association had waived any rights which it may have had to prevent the plaintiffs from gaining access to their property across the common area because the Association had repeatedly allowed similar continuing violations by other individuals in Marrcrest. In support of that allegation, Mr. Rowley testified that in eight of the ten other parking areas there were driveway entrances. He testified that he had long been a member of the homeowners’ association, had served three times on the board of trustees, had served as president and secretary and had attended many homeowners’ meetings, but he had never heard that any resident had been told that he was not to obtain access to his property through the common area. The inference of his testimony was that the Association had never given permission for any owner to so use the common area. Clinton Harding, president of the Association in 1979, testified that the plaintiffs had been “treated differently” than had other individuals in like circumstances in the installation of driveways. On the other hand, the Association adduced testimony that it had given express approval in the eight other cases although in some of them permission was given only for temporary use.
The trial court made no specific finding of fact whether the other uses of the common area for entrance to driveways was with or without the consent of the Association. Neither was the subject mentioned in his memorandum decision. The majority opinion states that “waiver and estoppel do not apply in this case because the Association has consistently required all construction to be approved before it was commenced.” I fail to find anything in the Findings of Fact to that effect.
As stated in the majority opinion, restrictive covenants which are habitually violated and apparently abandoned will not be enforced by a court of equity. I believe that the plaintiff properly raised that issue in this case and that the Findings of Fact *420made by the trial court do not specifically address that issue. A Conclusion of Law states that the “plaintiffs did not sustain their burden to prove the allegation set forth in their complaint.” That statement is so general and conclusory that it is not helpful here. I would remand this case to the trial court for a specific finding as to whether the use of the common area by others as an entrance to driveways was with or without the prior consent of the Association and to amend the judgment accordingly if necessary.
It should be further noted that assuming the other uses were with the consent of the Association, the Association could not arbitrarily and capriciously deny the same privilege to the plaintiffs. This claim, however, was not pleaded by the plaintiffs and is not properly before us for decision.