Village Gate Homeowners Ass'n v. Hales

• Decision Date: 31 August 1978
• Docket Number: No. 770510,770510
• Citation: 246 S.E.2d 903,219 Va. 321
• Parties: VILLAGE GATE HOMEOWNERS ASSOCIATION v. Carole Nixon HALES. Record
• Court: Virginia Supreme Court

Page 903

246 S.E.2d 903

219 Va. 321

VILLAGE GATE HOMEOWNERS ASSOCIATION v. Carole Nixon HALES.

Record No. 770510.

Supreme Court of Virginia.

Aug. 31, 1978.

John P. Milligan, Jr., Alexandria (Smiley, Lear & Milligan, Alexandria, on brief), for appellant.

Denis D. McKenna, Fairfax (Dennis D. Duffy, Duffy & Brooks, Fairfax, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

We decide in this chancery proceeding whether there has been a waiver of the right to enforce a restrictive covenant affecting real property.

Appellant Village Gate Homeowners Association, a corporation charged with the duty to enforce the covenants, conditions and restrictions in Village Gate, a residential subdivision in Prince William County, brought this suit in equity against appellee Carole Nixon Hales, a fee-simple owner of a row townhouse in the development. Plaintiff sought to have an order entered requiring that defendant remove a front-yard wall or fence which had been constructed at her direction on her property. After hearing the evidence Ore tenus, the chancellor denied the prayer of the bill of complaint and we awarded plaintiff an appeal to the December 1976 final decree which dismissed the bill.

The facts are undisputed. In 1973, defendant acquired title to the property in question. The conveyance was subject to duly recorded restrictive covenants applicable to all the property in the subdivision. The following covenant is pertinent to this controversy:

"ARTICLE VI.

"ARCHITECTURAL CONTROL

"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)."

During May and June of 1975, apparently in an effort to correct drainage problems, defendant erected a low, solid, brick wall, entirely on her property, enclosing her small front yard, at a cost of $960.00. The evidence showed the wall was an attractive, well-built structure which was compatible in color and texture with the exterior of her townhouse. Its height at the front walk was 30 inches with an iron gate at the sidewalk entrance.

The work began on May 20. During construction, according to the record, defendant was notified by a representative of the plaintiff Association that such a wall violated the foregoing covenant. The work was completed on June 14. During the following month, plaintiff, through counsel, demanded that the wall be removed. Defendant refused. During July she made a written request of the Association for approval of the structure. The request was formally denied by plaintiff in September of 1975, after this suit had been filed in August.

The evidence also showed that two other property owners in the subdivision had "at one time," erected front yard fences, consisting of one-foot high wooden posts with rope strung through each post, but that they had been removed at the plaintiff's request. At the time of trial, defendant's wall was the only front-yard fence or wall standing in the subdivision in violation of the covenant in issue.

The record also reveals that, in addition to side-yard fences built by the developer, "several" other side-yard fences for "end unit homes" had been constructed. These other fences violated the covenant and the evidence shows that plaintiff had not requested their removal but had stated, in a letter from its Architectural Control Committee, that no action would be taken against owners of "harmonizing" side-yard fences.

The trial court ruled that from an aesthetic standpoint defendant's wall improved the appearance of the premises. He reasoned that because plaintiff had permitted side-yard fences violative of the covenant and had declared that "harmonizing" side-yard fences did not detract from the appearance of the neighborhood, it had waived the covenant as to side fences. The chancellor then held that aesthetically pleasing front-yard fences or walls could not be prohibited because both front and side structures were specifically controlled by the same covenant. Accordingly, the court below decided that the covenant as to front-yard fences or walls had been "legally waived or abandoned" and "it would be inequitable" to enforce such covenant "against any person within (its) common design and purpose".

Although the Association assigns four errors, the dominant issue is whether, under these facts, the defendant has proved that plaintiff waived the covenant as it applies to front-yard fences or walls.

While denying that it has abandoned the side-yard restriction and arguing that the "aesthetic nature of a prohibited improvement has no probative value" upon the issue here presented, the Association contends that by its failure to take action against "harmonizing" side-yard fences, it has not thereby waived its right to prohibit front-yard fences or walls. The defendant, on the other hand, adopting the trial court's reasoning, maintains that she has carried her burden of proof and shown that such waiver has occurred. We do...