
    CIRCUIT COURT OF FAIRFAX COUNTY
    James Ross et al. v. Laurel Glen Homeowners Association, Inc.
    August 4, 1997
    Case No. (Chancery) 149547
   By Judge Thomas S. Kenny

This matter is before toe Court on toe issue of whether toe Laurel Glen Homeowners Association (“toe Association”) has toe authority to undertake certain proposed modifications to toe southern section of Laurel Glen Road within toe scope of a multi-purpose easement created in toe Deed of Dedication of toe Laurel Glen subdivision. The Court rules that toe Association does not have toe authority to undertake toe proposed modifications to Laurel Glen Road under toe restrictive covenants to toe Deed of Dedication before toe Court and, accordingly, grants Plaintiffs’ petition for a temporary injunction.

I. Background

On May 12,1997, Plaintiffs Jantes and Joanne Ross, co-owners of Lot 10 of toe Laurel Glen subdivision, filed a petition for a temporary iajunction to restrain toe Laurel Glen Homeowners Association from undertaking modifications to toe southern portion of Laurel Glen Road, a private road serving toe lots in toe Laurel Glen subdivision. The Association proposes to modify toe southern portion of Laurel Glen Road to facilitate private and emergency vehicle access to Lot 9. Plaintiffs allege toe proposed modifications violate a multi-purpose easement contained in toe Plat to toe Deed of Dedication creating toe Laurel Glen subdivision by encroaching on their lot and the alleged exclusive bridle trail, destroying the hardwood trees screening their property, and endangering the septic sewer lines extending under the existing roadway. The Court held a hearing on Plaintiffs’ petition for a temporary injunction on May 29, 1997, at which time the Court sua sponte raised the issue of whether the Association, in the first instance, has the authority to undertake any modifications to Laurel Glen Road on toe lot owners' behalf. The court requested and received briefs from counsel on that point In considering toe easement and restrictive covenants to toe deed of dedication for toe subdivision, toe Court finds toe Association lacks such authority.

II. Analysis

A. Association's Responsibilities under Original and Amended Restrictive Covenants

The Deed of Dedication creating toe Laurel Glen subdivision established in its incorporated Plat recorded on June 14,1977, a multi-purpose easement for "ingress and egress, bridle trails, emergency vehicles and utilities” to serve toe thirteen subdivision lots. The restrictive covenants incorporated in toe Deed of Dedication bestow on toe Association toe responsibility for “toe maintenance of community property which shall include roads ....” Restrictive Covenants, Schedule B, at ¶ 2. Laurel Glen Road, a private road constructed pursuant to the multi-purpose easement for ingress and egress held by all lot owners, qualifies as community property. Accordingly, toe Association has responsibility for toe “maintenance* of Laurel Glen Road under toe original restrictive covenants.

On August 24,1994, one joint owner for each of nine out of toe thirteen lots executed amended restrictive covenants for toe Laurel Glen subdivision expanding toe scope of toe Association’s responsibilities. Under toe amended restrictive covenants, toe Association has toe responsibility for “toe maintenance, modification, repair, and/or replacement of all community property which shall include Laurel Glen Read, any bridle trails, and toe subdivision entrance.” Therefore, toe amended restrictive covenants, if valid, would confer the Association with the authority to cany out on behalf of the lot owners a wider range of proposed changes to Laurel Glen Road exceeding the scope of mere “maintenance,” as set forth under the original restrictive covenante.

The question remains whether tire work the Association seeks to have completed on Laurel Glen Road Ms in the category of “maintenance” or ‘modification.” Based on the evidence presented at trial and the pleadings before the Court, the Court finds the proposed work exceeds the scope of mere maintenance and qualifies as a modification. The plain meanings of the words “maintenance” and “modification” speak for themselves. The proposed work would entail widening the road and creating cul de sacs. Consequently, changes to Laurel Glen Road on behalf of all lot owners under the original restrictive covenants. Such changes, however, would M within the scope of die Association’s responsibilities under tire amended restrictive covenants.

B. Reasonableness of Proposed Modification to Laurel Glen Road

In addition to considering whether proposed changes M within the scope of die Association’s responsibilities, the Court also must decide whether such changes are reasonable. Under Hayes v. Aquia Marina, 243 Va. 255 (1992), tire owner of a dominant estate has the right to make only “reasonable" improvements to an easement. Likewise, the Association, in its representative capacity for the lot owners, has the right to make only “reasonable” improvements to Laurel Glen Road. An improvement is reasonable if the proposed expansion does not “in and of itself" impose an “additional burden" upon the easement, even though the “degree of burden” may be increased. Hayes, at 260. In the case at hand, the easement was for “ingress and egress, bridle trails, emergency vehicles, and utilities.” The proposed changes to Laurel Glen Road do not inpose an additional burden on the easement Rather, the changes would provide access to emergency vehicles where such access is not available. The Court further rejects Plaintiffs’ argument that the proposed changes are unreasonable by interfering with a mutualiy-exclusive road and bridle trail easement. The recorded easement does not create an exclusive bridle trail easement. Consequently, the Court finds that the proposed changes are reasonable.

C. Validity of Amended Restrictive Covenant

While the proposed improvements to Laurel Glen Road are both reasonable and within die scope of the Association’s responsibilities as delineated in the amended Restrictive Covenants (¶ 2), the Court, nevertheless, roles that the Association dees not have die authority to make the proposed changes to Laurel Glen Road on behalf of the lot owners because the amended restrictive covenants are invalid. Under paragraph 16 of the original restrictive covenants, “the covenants shall be automatically extended for successive periods of five years unless an instrument signed by a majority of the then owners of the lots has been recorded agreeing to change said covenants in whole or in part" Only one co-owner for each of a majority of die lots, apparently acting without a power of attorney from the other co-owner, signed the amended and restated restrictive covenants of August 24, 1994. It rakes both co-owners to effect a change to property held as tenants by the entirety. See, e.g., Smith v. Smith, 200 Va. 77 (1958) (holding that neither husband nor wife can defeat, by a separate act, the rights of the other in an estate by the entirety); Jones v. Conwell, 227 Va. 176 (1984) (same); Painter v. Lingon, 193 Va. 840, 847 (1952) (holding that a marriage relationship does not make one spouse an agent far die other). Thus, no single lot validly participated in the 1994 amendments, much less a majority. Since the lot owners did not follow die proper procedure for amendment, die Court finds the amended and restated covenants to be invalid. The language of the original restrictive covenants alone, therefore, defines the scope of the Association's responsibilities.

Since the proposed changes to Laurel Glen Road exceed the scope of the Association’s responsibility for road maintenance under the original restrictive covenants, the Association does not have the authority to cany out the proposed changes to Laurel Glen Road. The Court grants Plaintiff’ petition for a temporary injunction. 
      
       As noted in die Association’s brief on this issue, a majority of all lot owners, including both co-owners for each lot, executed second amended and restated restrictive covenants for die Laurel Glen subdivision on June 3,1997. The second amended restrictive covenants mirror the Association’s responsibilities undo: the first amended restrictive covenants. Nevertheless, die Court is unable to consider die second amended restrictive covenants in its ruling on this matter since they postdated the Court’s hewing of May 29, 1997, on Plaintiffs' petition for injunctive relief and are not part of the pleadings or proof in this matter. The Court makes no ruling as to whether the proposed improvements to die road would be permissible under the June 1997 amendments.
     