Real Property  – Commercial use of property violated Declaration of Covenants

Where a Declaration of Covenants, Conditions, and Restrictions stated that certain land could not be used for any business, trade or similar activity, the district court correctly held this provision was violated when a portion of the property was used for a commercial tree nursery.

Background

This case involves a dispute about the meaning of the Declaration of Covenants, Conditions, and Restrictions for a Virginia Beach residential golfing community. The district court entered summary judgment and granted partial wins to both sides. This cross-appeal followed.

Exhaustion

The Declaration states that any party wishing to litigate its terms must first complete the mediation procedures set out in § 16.2. Here, the West Neck Community Association failed to exhaust its claims by prematurely instituting both its initial lawsuit and the instant litigation. JBWK LLC, by contrast, never expressly waived its right to exhaustion and attempted to mediate and filed its own claims only in response to the Association’s lawsuit. Accordingly, this court addresses only the merits of the issues raised by JBWK.

Declarant

The first question is whether and when JBWK became the Declarant. The uncontested facts indicate that Baymark had assigned its Declarant rights to JBWK in a recorded instrument no later than June 2022. Consequently, when JBWK merged with WC Capital LLC the next month and took ownership of the golf course, JBWK became the Declarant. The Association does not point to any facts in the record that cast any reasonable doubt on that conclusion. The district court was thus correct to enter summary judgment for JBWK on this issue.

The next issue is whether the Association validly amended the Declaration in August 2022. Per the terms of the Declaration, it may be amended only with the Declarant’s consent. After JBWK became the Declarant in July 2022, the Association passed the two amendments at issue without the knowledge or approval of JBWK. The amendments were, thus, procedurally deficient and unenforceable.

The Association argues to the contrary by claiming that there was no Declarant when the amendments passed because Virginia had administratively dissolved Baymark Construction Corporation before Baymark had named a successor Declarant. But Baymark’s corporate existence was reinstated in August 2022, and under Virginia corporate rules, reinstatement voids an earlier dissolution “as if the termination had never occurred.” Therefore, the district court correctly entered judgment for JBWK on this issue.

Property use

The next issue is whether JBWK can use the golf course as a commercial tree nursery. Exhibit C of the Declaration states that land within West Neck “shall be used only for residential, recreational, and related purposes” and not for “[a]ny business, trade . . . or similar activity.” Thus, the Declaration bars JBWK from using the golf course for any commercial purpose.

JBWK’s primary argument to the contrary is that § 6.1 of the Declaration does not apply to JBWK because that section is “imposed only on ‘Owners,’” and JBWK is not an “Owner” as that term is defined. Even if JBWK’s argument was correct, the point is irrelevant because the prohibition on commercial uses does not arise in § 6.1. Rather, it is stated plainly in Exhibit C. And JBWK does not contest that it is subject to the relevant provisions contained in Exhibit C. Therefore, the district court was correct to enter summary judgment for the Association on this issue.

Enforcement

The final issue is whether the Declaration grants the Association power to enforce its rules against the Declarant. It does.

The first page of the Declaration states, “[a]n integral part of the development plan is the creation of [the Association] . . . to enforce this Declaration and the other Governing Documents.” Another section, “[t]his Declaration . . . shall be enforceable by [JBWK], [the Association], any Owner, and their respective legal representatives, heirs, successors, and assigns.” The Declaration also refers to the Association as “the primary entity responsible for enforcement of the Governing Documents.”

JBWK attempts to evade the Declaration’s plain meaning by once again pointing to provisions that it claims limit the Association’s enforcement power to residential property owners. These arguments are rejected. As a result, here, too, the district court correctly granted judgment for the Association.

Affirmed.

West Neck Community Association, Inc. v. JBWK, LLC, Case Nos. 25-1496, 25-1562, Feb. 24, 2026 4th Cir. (per curiam), from WDVA at Norfolk (Hanes). John D. McIntyre for Appellant/Cross-Appellee. Mark R. Baumgartner for Appellee/Cross-Appellant. VLW 026-2-064. 20 pp.

Full-Text Opinion

VLW 026-2-064
Virginia Lawyers Weekly