There are other rules which lot owners may be able to use to assert a “selective enforcement” defense other than the “defeat of common scheme” rule discussed in Raintree. Or if the original declaration called for the association or developer to establish bridle paths across the front of each lot for equestrian activity, and instead of doing so, many lot owners built fences and other structures in the areas originally contemplated for horse trails. If this was a case where a majority of the lot owners violated a covenant prohibiting sheds in the front yards for many years, then it would be much more likely to be found to render the prohibition useless. “Selective Enforcement” is a difficult defense to prove when relying upon the rule in Raintree. This can discourage useful economic growth between services and consumers of ordinary means. Enforcement of such rules often “drives” small business owners further away from their service areas, require them to pass on “overhead” garage costs to their customers in higher prices, or force them out of business. Commercial vehicle or home business restrictions can hit working class people harder than professionals. Usually, owners are permitted to use their home as an office for professional work that does not impact the curbside views of the lot. These rules can be onerous to small business owners who need a commercial vehicle to earn a living. Many HOA declarations prohibit the keeping of commercial vehicles or motor homes in the subdivision. This is one reason why many HOAs like to own their own roads. If VDOT didn’t have a problem with the truck, then there wasn’t anything that could be done against it. The HOA had no authority to regulate parking on Old Brook Road because it had been incorporated into the state system of highway maintenance. The Supreme Court observed that Old Brook Road is State Route 652, not a private right of way. The Supreme Court found that the Circuit Court properly denied the HOA’s request for an order prohibiting the Joneses from parking their wrecker truck on Old Brook Road. 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.” The Supreme Court found that the HOA’s failure to enforce the covenant against Nicely and Powell did not substantially devalue of the covenant in the context of the overall architectural scheme of the development. The Supreme Court of Virginia’s longstanding rule says that the right to enforce a restrictive covenant may be lost by “waiver, abandonment or acquiescence” by the association to violations thereof. Nicely or Powell, did not constitute a waiver of the enforceability of that covenant in the Jones case. The HOA also argued that its failure to enforce the covenant against Messrs. The Supreme Court disagreed with the HOA’s view that the utility company pickup trucks were not commercial trucks or “trucks of any nature” prohibited by the covenant. The section also prohibited, “school buses, commercial vehicles or habitable motor vehicles” outside of an enclosed garage. The disputed covenant prohibited lot owners from parking trucks “of any nature” overnight on property in the subdivision, except in an enclosed garage. Two other owners, Gordon Nicely and Dennis Powell parked pickup trucks owned by a utility company at their homes without HOA objection. The HOA’s enforcement was a sore subject. Raintree brought suit against the Jones family, seeking an order prohibiting them from keeping a “wrecker” tow truck on their residential property. The Supreme Court of Virginia considered this question in the 1992 decision, Raintree of Albemarle Homeowners Association v. The owner, reading her notice of violation, may wonder if the HOA had effectively abandoned enforcement of the restriction or if the notice is an unfair “selective enforcement” against some lots but not others. ![]() Subdivision deed restrictions often seem “Procrustean.” But at least Procrustes held all visitors to the same “standard.” When a HOA or condominium seeks to enforce a restrictive covenant against a particular owner, often there are other properties for which the board has failed to enforce that covenant against for a number of years. In the law, judges, lawyers and professors sometimes deride arbitrary or unwise legal standards as “Procrustean.” Procrustes met his end when the hero, Theseus “fitted” Procrustes to the length of the bed in his own guest room. Either way, Procrustes ended up with their valuables. If the visitor was too tall, he would chop off their legs to fit them. Once inside, if the visitor was too short, he violently stretched them to the full length of the bed. In Greek mythology, Procrustes was a robber who deceived his victims into entering his house by offering a free bed for the night.
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