Raintree of Albemarle Homeowners Ass'n v. Jones, 243 Va. 155 

Supreme Court of Virginia

1992

Chapter

27

Title

Common Interest Communities

Page

541

Topic

Waiving Covenant Rights

Quick Notes

Jones purchased a RED tow truck for his business where he parked it in front of his house.  The HOA requested that Jones remove the truck and he refused.  Jones argued that other homeowners parked pickup trucks owned by a utility company at their homes which constituted as a waiver of the HOAs rights to enforce the restrictive covenants.

Covenants

No school buses, commercial vehicles, or habitable motor vehicles may be kept on or stored on any part of the property except within an enclosed garage. No trucks of any nature shall be parked overnight on the property subject hereto except in an enclosed garage

Determining Substantial Value

o         To determine whether [the homeowner] has shown no substantial value was left in this restriction, we look first to its purpose and then to the conduct of [the homeowners association] as it affected the neighborhood

Rule

• As long as the value of the covenant has not been affected substantially, [a homeowners association] will not be deemed to have waived the right to enforce [the covenant]. 

Court Holding (not to enforce, did not substantially affect covenant value)

o         The HOA did not waive its right to enforce the restriction.

o         The restriction, which is binding upon all homeowners in the Raintree subdivision including Charles and Glenda Jones, was enacted to enhance and protect the value and attractiveness of the subdivision.

o         Our review of the record, including photographs of the tow truck, the pickup trucks and houses in the subdivision, indicates that the Homeowners Association's decision not to enforce the covenant against Mr. Nicely and Mr. Powell did not substantially affect the value of the covenant.

Book Name

Fundamentals of Modern Property Law: Rabin; Kwall, Kwall.  ISBN:  978-1-59941-053-1.

Issue

o         Whether a homeowners association has waived its right to enforce a restrictive covenant?  No.

Procedure

Trial

o         The Circuit Court of Albemarle County (Virginia) granted partial relief but refused to grant an injunction prohibiting the resident from parking a wrecker in his driveway.

Supreme

o         The court reversed, in part, and remanded for the trial court to enter an order enjoining the resident from parking his wrecker within the subdivision

Facts

Discussion

Reasoning

Rules

Pl Raintree HOA

Df - Jones

Description

o         Raintree of Albemarle Homeowners Association, Inc. filed its bill of complaint against Charles D. Jones and Glenda M. Jones.

Seeking To Enjoin

o         Seeking to enforce certain restrictive covenants contained in a "Declaration of Statement of Restrictions[,] Covenants[,] and Conditions."

Prohibit Parking Tow Truck

o         The Homeowners Association requested that the chancellor issue an injunction which, among other things, would have prohibited Charles and Glenda Jones from keeping or storing a tow truck on their property.

Chancellor Granted Partial Relief

o         The chancellor enjoined Mr. Jones from:

o  Parking any vehicle on property owned by others without permission;

o  Placing vehicles in a state of disrepair on his property or on Old Brook Road; and

o  Placing vehicles with painted signs on his property.

Chancellor HOA was not entitled

o         The Homeowners Association was not entitled to the issuance of an injunction because it had not uniformly enforced the restrictive covenant against other property owners in the subdivision.

o         Additionally, the court did not grant injunctive relief against Glenda Jones and declined to award the complainant or respondents attorneys' fees.

Covenants

o         No school buses, commercial vehicles, or habitable motor vehicles may be kept on or stored on any part of the property except within an enclosed garage. No trucks of any nature shall be parked overnight on the property subject hereto except in an enclosed garage, nor shall any vehicles of any description be permitted to be repaired on any lot or the Common Area, except in an enclosed garage or other area completely screened from roads and adjoining properties.

HOA Argues - did not constitute a waiver

o         Its failure to require Nicely and Powell to remove their trucks did not constitute a waiver of the Homeowners Association's right to enforce the restrictive covenant.

Village Gate Homeowners Ass'n. v. Hales

o         There, a homeowners association filed a suit to enforce certain covenants, conditions, and restrictions.

o         The association sought an order requiring a homeowner to remove a front yard wall which had been constructed on her property in violation of a covenant which stated:

Language

o         "No front or side yard fence, wall or walls, or other similar type structures shall be allowed except those constructed by or on behalf of [the developer]."

Trial Court It did waive its right

o         The trial court held that the homeowners association had waived its right to enforce the restrictive covenant because the association had permitted certain homeowners to retain side yard fences violative of the covenant.

Supreme Court Reversed judgment

o         Elementary is the proposition that the right to enforce a restrictive covenant of this type may be lost by waiver, abandonment or acquiescence in violations thereof.

Must show enforcement is of NO substantial value to the property owners

o         But the party relying on such waiver must show that the previous conduct or violations had affected 'the architectural scheme and general landscaping of the area so as to render the enforcement of the restriction of no substantial value to the property owners.'

Determining Substantial Value

o         To determine whether [the homeowner] has shown no substantial value was left in this restriction, we look first to its purpose and then to the conduct of [the homeowners association] as it affected the neighborhood

Court Holding (not to enforce, did not substantially affect covenant value)

o         The HOA did not waive its right to enforce the restriction.

o         The restriction, which is binding upon all homeowners in the Raintree subdivision including Charles and Glenda Jones, was enacted to enhance and protect the value and attractiveness of the subdivision.

o         Our review of the record, including photographs of the tow truck, the pickup trucks and houses in the subdivision, indicates that the Homeowners Association's decision not to enforce the covenant against Mr. Nicely and Mr. Powell did not substantially affect the value of the covenant.

Rule

o         As long as the value of the covenant has not been affected substantially, [a homeowners association] will not be deemed to have waived the right to enforce [the covenant]. 

Rules

Determining Substantial Value

o         To determine whether [the homeowner] has shown no substantial value was left in this restriction, we look first to its purpose and then to the conduct of [the homeowners association] as it affected the neighborhood

Rule

o         As long as the value of the covenant has not been affected substantially, [a homeowners association] will not be deemed to have waived the right to enforce [the covenant]. 

Class Notes