{"id":829,"date":"2024-12-22T17:45:04","date_gmt":"2024-12-22T17:45:04","guid":{"rendered":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/?p=829"},"modified":"2024-12-22T17:45:04","modified_gmt":"2024-12-22T17:45:04","slug":"retroactive-restriction-on-commercial-use-invalid-against-a-lot-that-was-expressly-permitted-to-engage-in-such-uses","status":"publish","type":"post","link":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/2024\/12\/22\/retroactive-restriction-on-commercial-use-invalid-against-a-lot-that-was-expressly-permitted-to-engage-in-such-uses\/","title":{"rendered":"Retroactive restriction on commercial use invalid against a lot that was expressly permitted to engage in such uses"},"content":{"rendered":"\n

The Supreme Court of Virginia has held that a declaration that gives owners collective powers to \u201cmodify\u201d or \u201cchange\u201d covenants in the declaration did not give the owners the right to prevent commercial use by a lot owner that had been expressly permitted to engage in commercial uses under the original declaration. Westrick v. Dorcon Group, LLC<\/a>, 901 S.E.2d, 468 (Va. 2024).<\/p>\n\n\n\n

While the court focused on dictionary definitions of the word \u201cmodify,\u201d it also took the traditional (and now receding view) that covenants such be seen as encumbrances on property (rather than as valuable benefits) and thus should be interpreted narrowly to ensure the widest freedom to use land. It also noted that the power to create \u201cexceptions,\u201d or \u201cmodifications,\u201d or to \u201cvacate\u201d the restrictions suggested a power to limit the restrictions, not a power to introduce new ones.<\/p>\n\n\n\n

There was no homeowner\u2019s association created by the declaration, but 25 of the 30 lot owners filed a document purporting to limit the uses of Lot 5 to residential uses. The Virginia Supreme Court found that they had no power to do that. The power to modify restrictions is not the power to \u201cimpos[e] a greater restriction on the free use of property\u201d than was originally imposed.<\/p>\n\n\n\n

In the court\u2019s textual interpretation of the original declaration, it noted that \u00b61 of the declaration excepted Lot 5 from the restrictions on non-residential uses and that the power to \u201cmodify\u201d the covenants\u201d provided for in \u00b619 could not give the owners the power to impose an entirely new restriction on a lot that had been expressly exempted from that very restriction.<\/p>\n\n\n\n

There was a different provision in \u00b619 of the declaration that did the owners to \u201cchange\u201d the covenants with a vote of 75% of the owners. The Virginia Supreme Court did not directly address the meaning of the word \u201cchange\u201d because it relied on the fact that the amendment of the covenants formally relied on the power of the owners to \u201cmodify\u201d rather than the power to \u201cchange\u201d the restrictions.<\/p>\n\n\n\n

Would it have made a difference if the recorded amendment to the restrictions had relied on the textual power to \u201cchange\u201d the restrictions? The answer is not clear but probably not. That is because the court emphasized the general freedom of owners to use their land as they see fit and relied on the traditional notion that any restrictions on land use must be narrowly construed. For that reason it concluded that the entire paragraph 19 was limited by the concept that existing <\/em>covenants could be \u201cmodified\u201d or \u201cterminated\u201d but that \u201cdoes not permit the [owners to impose] entirely new restrictions\u201d on a lot that had been expressly exempt from them.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court of Virginia has held that a declaration that gives owners collective powers to \u201cmodify\u201d or \u201cchange\u201d covenants in the declaration did not give the owners the right to prevent commercial use by a lot owner that had been expressly permitted to engage in commercial uses under the original declaration. Westrick v. Dorcon Group, LLC, 901 S.E.2d, 468 (Va. 2024). While the court focused on dictionary definitions of the word \u201cmodify,\u201d it also took the traditional (and now receding view) that covenants such be seen as encumbrances on property (rather than as valuable benefits) and thus should be interpreted narrowly to ensure the widest freedom to use land. It also noted that the power to create \u201cexceptions,\u201d or \u201cmodifications,\u201d or to \u201cvacate\u201d the restrictions suggested a power to limit the restrictions, not a power to introduce new ones. There was no homeowner\u2019s association created by the declaration, but …<\/p>\n

Retroactive restriction on commercial use invalid against a lot that was expressly permitted to engage in such uses<\/span> Read More »<\/a><\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","footnotes":""},"categories":[28,35],"tags":[],"class_list":["post-829","post","type-post","status-publish","format-standard","hentry","category-condominiums-and-homeowners-associations","category-servitudes"],"featured_image_src":null,"featured_image_src_square":null,"author_info":{"display_name":"jsinger","author_link":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/author\/jsinger\/"},"_links":{"self":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts\/829","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/comments?post=829"}],"version-history":[{"count":0,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/posts\/829\/revisions"}],"wp:attachment":[{"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/media?parent=829"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/categories?post=829"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/faculty.law.harvard.edu\/joseph-singer\/wp-json\/wp\/v2\/tags?post=829"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}