Raintree of Albemarle Homeowners Association, Inc. filed its
bill of complaint against Charles D. Jones and Glenda M. Jones.
Seeking To Enjoin
Seeking to enforce certain restrictive covenants contained in a
"Declaration of Statement of Restrictions[,] Covenants[,] and
Prohibit Parking Tow Truck
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
Chancellor Granted Partial Relief
The chancellor enjoined Mr. Jones from:
Parking any vehicle on property
owned by others without
Placing vehicles in a state of
disrepair on his property or on Old Brook Road;
Placing vehicles with painted signs
on his property.
Chancellor HOA was not entitled
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
Additionally, the court did not grant injunctive relief against
Glenda Jones and declined to award the complainant or
respondents attorneys' fees.
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
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
There, a homeowners association filed a suit to enforce certain
covenants, conditions, and restrictions.
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:
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
The trial court held that the homeowners association
waived its right
to enforce the restrictive covenant because the association had
permitted certain homeowners to retain side yard fences
violative of the covenant.
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
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
Determining Substantial Value
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
Holding (not to enforce, did not substantially affect covenant
The HOA did not waive its right to enforce the restriction.
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
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.
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].