Riordan v. Hale
| Decision Date | 10 March 1975 |
| Citation | 212 S.E.2d 65,215 Va. 638 |
| Court | Virginia Supreme Court |
| Parties | Edward J. RIORDAN and James O. Day v. William F. HALE et al. |
James J. Conroy, III, Fairfax, for appellants.
No brief filed on behalf of appellees.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
Edward J. Riordan and James O. Day, owners of lots in Westwood Park Subdivision, in Fairfax County, filed their bill of complaint against William F. Hale and Frances L. Hale, his wife, and William H. Finein and Irene L. Finein, his wife, lot owners in the same subdivision, alleging that the Hales and Fineins had constructed fences on their respective properties within 25 feet of street lines, in violation of restrictive covenants applicable to all lots in the subdivision. Complainants asked that the respondents be ordered to relocate their fences in compliance with the restrictive covenants. After considering the evidence, including the testimony of witnesses for the complainants heard Ore tenus, the chancellor ruled that respondents' breach of the covenants had been waived, and sustained respondents' motion to strike the evidence. By order entered February 5, 1974, from which complainants have appealed, the chancellor dismissed the bill of complaint, with prejudice.
The restrictive covenants, duly recorded in the Clerk's Office of the Circuit Court of Fairfax County and incorporated by reference into all deeds conveying title to lots in the subdivision, provide in pertinent part as follows:
'2) No building shall be erected, placed or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the architectural control committee as to quality of workmanship and materials, harmony of external design with existing structures and as to location with respect to topography and finish grade elevation. No fence or wall shall be erected, placed or altered on any lot nearer to any street than the minimum building setback line unless similarly approved. Approval shall be provided in Paragraph 9 hereof.
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'4) No building shall be located on any lot nearer to the front lot line or nearer to the side street line than the minimum building setback lines shown on the recorded plat. In any event no building shall be located on any lot nearer than 25 feet to the front lot line, or nearer than 25 feet to any side street line. No building shall be located nearer than 10 feet to an interior lot line, except that no side yard shall be required for a garage or other permitted accessory building located 30 feet or more from the minimum building setback line. No dwelling shall be located on any interior lot nearer than 20 feet to the rear lot line. For the purposes of this covenant, eaves, steps and open porches shall not be considered as a part of a building, provided, however, that this shall not be construed to permit any portion of a building on a lot to encroach upon another lot.
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'9) The architectural control committee is composed of: Marshall W. Coffman, Hugh M. McCaffrey, Jr., and James R. Harris. A majority of the committee may designate a representative to act for it. In the event of death or resignation of any member of the committee, the remaining members shall have full authority to designate a successor. Neither the members of the committee, nor its designated representatives, shall be entitled to any compensation for services performed pursuant to this covenant. At any time, the then record owners of a majority of the lots shall have the power through a duly recorded written instrument to change the membership of the committee or to withdraw from the committee or restore to it any of its powers and duties.
'10) The committee's approval or disapproval as required in these covenants shall be in writing. In the event the committee, or its designated representative, fails to approve or disapprove within 30 days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.'
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It was stipulated that the Fineins had constructed their wooden fence within 25 feet of the street line in May, 1971, and that the Hales had constructed their chain link fence within 25 feet of the street line in May, 1972. The evidence showed that the Hale fence was erected in a single day and that shortly thereafter complainants asked the Fineins and Hales to move their fences back the required distance from the respective street lines. When these requests were refused complainants referred the question to the Architectural...
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