Can a Virginia homeowners association enforce a covenant that limits homes to residential use only, with a narrow exception for home offices?

Plain-English summary

Delegate Ware asked whether a residential-use restrictive covenant in the Brandermill planned community in Chesterfield County was legally enforceable. The covenant said lots in residential areas may be used only for residential purposes, with one carve-out: a home office that does not create customer or client traffic counts as residential use.

Attorney General Mark R. Herring concluded the covenant is enforceable. The Virginia Property Owners' Association Act lets POAs include use restrictions in their recorded declarations and specifically lets them bar home-based businesses (§ 55-513.2). Virginia courts have long held that restrictive covenants, while disfavored and strictly construed, will be enforced when the intent is clear and the restriction is reasonable. The Brandermill covenant is reasonable on its face: it aligns with the express authority granted by the POA Act, and it builds in a sensible exception for home offices that don't generate traffic. The term "residential" is well-understood in common usage and clear enough to enforce.

The AG was careful to draw the line of his opinion. He did not address whether any particular use (a daycare? a piano teacher? short-term rental?) qualified as "residential purposes." That is a fact question reserved to courts and not to AG opinions.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Virginia Property Owners' Association Act was substantially renumbered and reorganized in 2018-2019, moving most provisions from Title 55 into the new Title 55.1 (Title 55.1, Chapter 18). Sections cited here (§ 55-508 series and § 55-513.2) now have current analogues in Title 55.1. Anyone applying this analysis today should cross-reference the current Title 55.1 numbering. Virginia case law on short-term rentals and home-based businesses as "residential" use has also continued to develop since 2017.

Background and statutory framework

The Virginia Property Owners' Association Act, codified at the time at §§ 55-508 through 55-516.2 (now Title 55.1, Chapter 18), governs POA operations. A POA has no inherent powers; it exercises only those powers the General Assembly delegated through the Act (Skeen v. Indian Acres Club, citing Unit Owners Ass'n v. Gillman, 223 Va. 752, 763 (1982)). The "declaration" is the foundational instrument (§ 55-509). It can impose maintenance obligations or mandatory financial obligations on lot owners. Use restrictions are part of the same fabric: § 55-513.2 explicitly permits a declaration to prohibit home-based businesses, and the disclosure-packet requirements in § 55-509.5(A)(9) presuppose that declarations may contain use restrictions.

The Supreme Court of Virginia has treated restrictive covenants in POA declarations as enforceable in cases like Tvardek v. Powhatan Village Homeowners Ass'n, 291 Va. 269 (2016), and Lovelace v. Orange Cty. Bd. of Zoning Appeals, 276 Va. 155 (2008).

The general restrictive-covenant doctrine that constrains enforcement comes from earlier cases. Restrictive covenants "are not favored" (Scott v. Walker, 274 Va. 209, 212-13 (2007), quoting Schwarzschild v. Welborne, 186 Va. 1052, 1058 (1947)) and "are to be strictly construed" (Deitrick v. Leadbetter, 175 Va. 170, 175 (1940)). But "courts of equity will enforce restrictive covenants where the intention of the parties is clear and the restrictions are reasonable" (Fein v. Payandeh, 284 Va. 599, 606 (2012)). A Virginia circuit court held in Farran v. Olde Belhaven Towne Owners Ass'n, 80 Va. Cir. 508, 511 (Fairfax City 2010), that POA members must abide by the governing documents.

The Brandermill covenant clears both filters. It is reasonable because it tracks the authority the POA Act grants and includes a workable exception. It is unambiguous because "residential" is a term of common usage. Virginia courts have read "residential" to encompass short-term rental (Scott, 274 Va. at 219), four-unit apartment buildings (Jernigan v. Capps, 187 Va. 73, 81 (1948)), and rental of rooms without meals (Schwarzschild, 186 Va. at 1064-65), while excluding commercial tourist homes (Deitrick, 175 Va. at 177).

The AG specifically declined to opine whether any particular use qualified. Whether a given activity is "residential" turns on facts about that activity, and "Attorneys General consistently have declined to render official opinions on specific factual matters" (2009 Op. Va. Att'y Gen. 80, 81; 2002 Op. Va. Att'y Gen. 321, 325).

Common questions

Q: Can a Virginia POA enforce a "residential use only" covenant?
A: The AG concluded yes, where the covenant is reasonable, the intent is clear, and the language is unambiguous. The Brandermill covenant met those tests.

Q: Does the home-office carve-out apply to every kind of home office?
A: Only to home offices that do not create customer or client traffic. Brandermill's covenant says so on its face. A home practice that brings clients to the lot would not qualify.

Q: What about short-term rentals through services like Airbnb?
A: The AG did not address short-term rentals in this opinion. The Supreme Court of Virginia held in Scott v. Walker, 274 Va. 209 (2007), that "residential" includes short-term rental in the absence of more specific covenant language, but every covenant must be read on its own terms.

Q: Does the POA Act let a POA prohibit home-based businesses entirely?
A: Yes, but only if the prohibition is in the recorded declaration. Section 55-513.2 (now in Title 55.1) makes that explicit.

Q: Are restrictive covenants generally favored under Virginia law?
A: No. They are disfavored and strictly construed. But they are enforceable when reasonable and unambiguous.

Q: Who decides whether a specific home activity violates the covenant?
A: The trial court, on the facts. AG opinions traditionally do not resolve fact-specific application questions.

Citations and references

Virginia statutes (at the time of the opinion):

• Va. Code Ann. § 55-508 (definitions; now Title 55.1)
• Va. Code Ann. § 55-509 (declaration definition; now Title 55.1)
• Va. Code Ann. § 55-509.5 (disclosure packet contents; now Title 55.1)
• Va. Code Ann. § 55-513.2 (home-based business prohibitions; now Title 55.1)
• Va. Code Ann. §§ 55-508 to 55-516.2 (Property Owners' Association Act; now Title 55.1, Chapter 18)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:

• Scott v. Walker, 274 Va. 209 (2007)
• Schwarzschild v. Welborne, 186 Va. 1052 (1947)
• Deitrick v. Leadbetter, 175 Va. 170 (1940)
• Whitehurst v. Burgess, 130 Va. 572 (1921)
• Fein v. Payandeh, 284 Va. 599 (2012)
• Tvardek v. Powhatan Village Homeowners Ass'n, 291 Va. 269 (2016)
• Lovelace v. Orange Cty. Bd. of Zoning Appeals, 276 Va. 155 (2008)
• Jernigan v. Capps, 187 Va. 73 (1948)
• Gillespie v. Commonwealth, 272 Va. 753 (2006)
• Brown v. Lukhard, 229 Va. 316 (1985)
• Moyer v. Commonwealth, 33 Va. App. 8 (2000)
• McKeon v. Commonwealth, 211 Va. 24 (1970)
• Anderson v. Commonwealth, 182 Va. 560 (1944)
• Unit Owners Ass'n v. Gillman, 223 Va. 752 (1982)
• Skeen v. Indian Acres Club of Thornburg, Inc., 27 Va. Cir. 167 (Spotsylvania Cty. 1992)
• Farran v. Olde Belhaven Towne Owners Ass'n, 80 Va. Cir. 508 (Fairfax City 2010)

Prior AG opinions:

• 2011 Op. Va. Att'y Gen. 163
• 2009 Op. Va. Att'y Gen. 80
• 2002 Op. Va. Att'y Gen. 321
• 1995 Op. Va. Att'y Gen. 91

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/16-029_Ware-restrictive_covenants.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

January 18, 2017

The Honorable R. Lee Ware, Jr.
Post Office Box 689
Powhatan, Virginia 23139

Dear Delegate Ware:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

A restrictive covenant of the Brandermill planned community provides that property in a residential area may be used only for residential purposes. You ask whether this covenant is legally enforceable.

Background

Brandermill is a planned community in Chesterfield County. A restrictive covenant in its declaration requires that property in a residential area be used exclusively for "residential purposes," except that an office that does not generate customer or client traffic (a "home office") is deemed a residential use:

All lots in said Residential Areas shall be used for residential purposes exclusively. The use of a portion of a dwelling on a lot as an office by the owner or tenant thereof shall be considered a residential use if such use does not create customer or client traffic to and from the lot.[1]

Applicable Law and Discussion

The Virginia Property Owners' Association Act (the "Act")[2] governs the operation and management of a property owner's association (a "POA") in Virginia. A POA has no inherent power; it has only those powers delegated to it by the General Assembly under the Act.[3] The primary document for any POA is the declaration.[4] A declaration may include restrictions on the uses of property.[5] The Act also specifically provides that a POA may prohibit any lot owner from operating a home-based business within his personal residence if the prohibition is contained in a recorded declaration.[6] Thus, since the restrictive covenant in question is in the declaration, all nonresidential uses in residential areas are barred, with the qualification that a home office not creating customer or client traffic to and from the lot is deemed a residential use.

It is well settled in Virginia that restrictive covenants are not favored.[7] Furthermore, the Supreme Court of Virginia has stated that restrictive covenants "are to be strictly construed."[8]

But although restrictive covenants are disfavored, they are permissible. The Supreme Court of Virginia has held that "courts of equity will enforce restrictive covenants where the intention of the parties is clear and the restrictions are reasonable."[9] A Virginia circuit court has held that members of a property owners association must abide by the association's governing documents.[10] A prior opinion of this Office concluded that a homeowners association may limit the use of housing units through a restrictive covenant.[11]

In my view, the restrictive covenant identified in your request is reasonable, as it comports with the authority specifically granted to a POA under the Virginia Code to restrict uses to residential purposes, and it provides a reasonable exception by deeming an office that does not create customer or client traffic to and from the lot to be a residential use. Further, even when strictly construed, the covenant is non-ambiguous.[12] "Residential" is a clear and unambiguous term of common usage.[13] I therefore conclude that this restrictive covenant is enforceable as written under the circumstances you have presented.

I express no opinion about whether any particular use of any particular property is for "residential purposes," because that is a question of fact rather than an interpretation of law. "Attorneys General consistently have declined to render official opinions on specific factual matters ...."[14]

Conclusion

For the reasons set forth above, it is my opinion that section 2(a) of Brandermill's restrictive covenants limiting the use of lots in residential areas for residential purposes exclusively is enforceable, subject to the exception that a home office that does not generate customer or client traffic is deemed a residential use.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Brandermill Declaration of Rights, Restrictions, Affirmative Obligations and Conditions: Multiple Family Covenants, Part II (Restrictions), Paragraph 2(a) (August 30, 1974).

[2] VA. CODE ANN. §§ 55-508 through 55-516.2 (2012 & Supp. 2016).

[3] See Skeen v. Indian Acres Club of Thornburg, Inc., 27 Va. Cir. 167, 170 (Spotsylvania Cty. 1992) (citing Unit Owners Ass'n v. Gillman, 223 Va. 752, 763 (1982)).

[4] See § 55-513.2 (Supp. 2016). The Act defines the term "declaration" as "any instrument, however denominated, recorded among the land records of the county or city in which the development or any part thereof is located, that either (i) imposes on the association maintenance or operational responsibilities for the common area or (ii) creates the authority in the association to impose on lots, or on the owners or occupants of such lots, or on any other entity any mandatory payment of money in connection with the provision of maintenance and/or services for the benefit of some or all of the lots, the owners or occupants of the lots, or the common area. 'Declaration' includes any amendment or supplement to the instruments described in this definition. 'Declaration' shall not include a declaration of a condominium, real estate cooperative, time-share project or campground." Section 55-509 (Supp. 2016).

[5] While the Act does not explicitly say that restrictive covenants may be included in a declaration, that concept is embedded in the fabric of the Act: perhaps it so obvious that the General Assembly did not see the need for it to be stated. See § 55-508 (2012) ("'Covenants,' 'deed restrictions,' or 'other recorded instruments' for the management, regulation and control of a development shall be deemed to correspond with the term 'declaration.'"). See also § 55-509.5(A)(9) (Supp. 2016) (The disclosure packet of a homeowners association shall include "[a] statement that any . . . uses made of the lot . . . are not in violation of the declaration ...."). The Supreme Court of Virginia has repeatedly, without question, treated restrictive covenants contained in declarations as enforceable. See, e.g., Tvardek v. Powhatan Village Homeowners Ass'n, 291 Va. 269, 276 (2016); Lovelace v. Orange Cty. Bd. of Zoning Appeals, 276 Va. 155, 159 (2008).

[6] "Except to the extent the declaration provides otherwise, no association shall prohibit any lot owner from operating a home-based business within his personal residence." Section 55-513.2 (emphasis added).

[7] Scott v. Walker, 274 Va. 209, 212-13 (2007) (quoting Schwarzschild v. Welborne, 186 Va. 1052, 1058 (1947)).

[8] Deitrick v. Leadbetter, 175 Va. 170, 175 (1940) (citing Whitehurst v. Burgess, 130 Va. 572, 576 (1921)).

[9] Fein v. Payandeh, 284 Va. 599, 606 (2012) (quoting Scott, 274 Va. at 212-13).

[10] Farran v. Olde Belhaven Towne Owners Ass'n, 80 Va. Cir. 508, 511 (Fairfax City 2010).

[11] 2011 Op. Va. Att'y Gen. 163, 164 (opining that the restrictive covenant in question placed a limit on the number of housing units a single owner could own and offer for rent).

[12] See Gillespie v. Commonwealth, 272 Va. 753, 758 (2006) (citing Brown v. Lukhard, 229 Va. 316, 321 (1985)) ("Language is ambiguous if it admits of being understood in more than one way, refers to two or more things simultaneously, is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness."). See also Scott, 274 Va. at 213 (quoting Schwarzschild, 186 Va. at 1058) ("[S]ubstantial doubt or ambiguity [in restrictive covenants] is to be resolved in favor of the free use of property and against restrictions.").

[13] The Supreme Court of Virginia has held the term "residential" to encompass the short-term rental of residential properties (Scott, 274 Va. at 219), a four-unit apartment house (Jernigan v. Capps, 187 Va. 73, 81 (1948)), and the rental of rooms without meals (Schwarzschild, 186 Va. at 1064-65), but not the commercial operation of a tourist home (Deitrick, 175 Va. at 177). When the General Assembly does not define a term, it is assumed to have intended for the term to have its ordinary meaning in common usage. 1995 Op. Va. Att'y Gen. 91, 91. In the absence of a contrary definition, words are presumed to have their usual and ordinary meaning. Moyer v. Commonwealth, 33 Va. App. 8, 35 (2000) (citing McKeon v. Commonwealth, 211 Va. 24, 27 (1970)). See also Anderson v. Commonwealth, 182 Va. 560, 565 (1944).

[14] 2009 Op. Va. Att'y Gen. 80, 81; 2002 Op. Va. Att'y Gen. 321, 325.