Glebe Harbor Deed Covenants Explained Part 2. Written In December 2019

Glebe Harbor Deed Covenants Explained Part 2. Written In December 2019

I am not an Attorney and the information provided is from my own experience / education, as well as my own research concerning Deed Covenants. This is the second post/article I have written concerning our governing documents. This specific explanation is being written upon request of others as well as my own concerns over remarks that have been recently written as well as spoken, by members of our Board of Directors in 2019.

As with all legal matters, if you need additional information concerning our covenants, I highly recommend you contact an Attorney who specializes in this type of law. From what I have been told and read, Judges are now leaning toward the property owner when it comes to “free use of land”. They are also becoming very critical in their decisions, if restrictive covenants are written in a broad language and subject to more than one interpretation.

Any Bold, Italicized and Underlined emphases was added by Dana Tucker. Italicized emphases represents direct quotes. Bold and Underline emphases are used to bring attention to a particular point or opinion. Again, this is my interpretation concerning the meaning of our covenants, as well as the actions of our present Board of Directors, as well as the actions of our past Board of Directors.

In the July 2019 issue of the Glebe Pointer, our President wrote: “Two of our board members, (Name Removed by Dana Tucker) (Vice President) and (Name Removed by Dana Tucker) (Covenant Compliance Officer), have taken on the task of examining the GHCA covenants with the goal of assuring a consistent interpretation of the meaning of each covenant and how it applies within the community in the best way today. The covenants were written at the time the community was developed and the language cannot be changed. It can, however, be interpreted to be applicable to the ways in which we live in the 21st century.

The statement our Present put in writing above, “It can, however, be interpreted to be applicable to the ways in which we live in the 21st century”, in my opinion is 100% incorrect! In fact, it is just the opposite. As I stated above, “From what I have been told and read, Judges are now leaning toward the property owner when it comes to “free use of land”. They are also becoming very critical in their decisions, if restrictive covenants are written in a broad language and subject to more than one interpretation”.

In the November 2019 issue of the Glebe Pointer, the President wrote: “Board members, (Name Removed by Dana Tucker) and (Name Removed by Dana Tucker), have examined and researched the covenants from the initial early documents establishing Glebe Harbor up to the current date. We now have a clear understanding of the meaning of each covenant and the subject matter included in each one. Our goal is to enforce the covenants where applicable in a clear, consistent, and equitable manner”.

At our December 7th, 2019 General Membership meeting, after the results were given by the Board Member assigned to this task concerning their research of our covenants, I asked if the Board was going to supply their interpretation of our covenants. Myself as well as others, were truly hopeful that as a Community, we would now have calcification concerning this subject.

The fact that they represented in writing that they now have a “consistent interpretation of the meaning of each covenant and how it applies” as well as “We now have a clear understanding of the meaning of each covenant and the subject matter included in each one”, I truly though they would provide this information to our membership. Honestly, it is hard for any member of any Association to seek guidance from their Board of Directors, when these very people have no knowledge of the meaning themselves.

The Board Member that was a part of this research stated they were in the process of putting this information together and would let us know when it would be available. Another Board Member, who is a Officer of the Court, quickly corrected this Board Members statement and stated that the Board would give “no interpretation concerning our covenants”, and that “our covenants would speak for themselves.

I have always been a firm believer that most people are more inclined to follow the rules, regulations as well as covenants, when they have a clear understanding of what they truly mean. As far as the statement of “ “While a camper/trailer may be stored on an unimproved lot”, this allowance also has restrictions applied by Westmoreland County, and we have many members in our community, that are in direct violation of this code as of December 9th, 2019. As per Westmoreland County Code 4-5.15.2 Limitations on Parking of Vehicles in Residential Districts:

Paragraph A. “Parking areas in front yards shall be limited to the area contained in paved or gravel driveways”.

Paragraph B states: “Parking of small cargo trailers and recreational vehicles or equipment in a residential district including but not limited to boats, boat trailers, camping trailers, travel trailers, motorized dwellings, tent trailers, houseboats and horse vans, are subject to the following limitations”.

Above is a partial list of what can be legally parked on your property, as long as you satisfy the following requirements. Please note that this applies to a “residential district” and not just unimproved lots.

  • Such equipment shall not be used for living, sleeping or other occupancy when parked or stored on a residential lot or in any other location not approved for such occupancy use.

This is the code that forbids using the above items for camping. While you are allowed to store these type of items on your property, you can only do so if you adhere to subsections 1 and 2, below, as it pertains to paragraph B above. Once you step outside of these requirements, you are now in violation and action can be taken to bring you into compliance.

  • Such equipment six (6) feet or more in average height, not parked or stored in a garage, carport or other structure, shall not be locatedin any required front or side yard and shall be located at least three (3) feet from all buildings.

All one has to do is drive through our community to see how many violations we have concerning this requirement. If your equipment is over six feet in height on average and it is “not parked or stored in a garage, carport or other structure”, it must be parked in your back yard.

This code is going to effect many members in our community concerning their boats, campers, closed in trailers as well as their motor homes, that are parked in their front and side yards. Westmoreland County refers to all the items mentioned above in paragraph (B), as “equipment”.

It now seems that after decades of non-enforcement of some of our covenants, our Board of Directors have decided to start the process of learning what our covenants truly mean and how they can now enforce them. This is their written words as stated in the Glebe Pointer.

It is my opinion that our Board of Directors have simply waited to long to try and enforce many of our covenants and past Board Members are just as guilty of non-enforcement of our covenants as well. It is the responsibility of any and all Board Members to inquire, as well as educate themselves, to what the extent of their duties consist of.

Our Board of Directors are now trying to take a stand and encouraging our members to report violations, concerning Westmoreland County Code. To pit neighbor against neighbor is never a good idea and could very well drag the community of Cabin Point into our situation/problems. When our Board does receive such a complaint, they need to treat it with strict confidence and represent this complaint to Westmoreland County, just as if it was coming from our Board of Directors and not a member of our Association or community.

I am a little taken back by their request due to the statement that was made at our June 2019 meeting, concerning the camper being used on N Glebe Road for camping. Our Board publicly stated that they did not want to be the “bad guys” and it should be handled by Westmoreland County officials, not them.

It is also my opinion that their simply stating where the Westmoreland County Code can be found on their violation letters, falls short of their duties. This document is 392 pages and without proper training, is a challenge at best to fully understand its contents. It is also my opinion that they have left out some of the most visible violations that are occurring in our community at this time. Boats over six foot in height as well as the large motor homes parked in front as well as the sides of property. Some of these owners may get upset if they have to pay for storage within Glebe Harbor or move these items out of our community.

The Glebe Harbor Civic Association was officially recognized as a Non Stock Corporation on March 30th, 1977 and I will assume that this is when our covenants became enforceable. Some of our covenants, according to one of our Board Members, have been barred by laches, due to non-enforcement.

They simply can no longer be enforced by the Association. The fact that this can happen to one covenant, means it can happen to other covenants as well. Some of our covenants have been superseded by Westmoreland County Code, and some have become obsolete or overridden by Federal Law.

Laches is the legal doctrine that an unreasonable delay in seeking a remedy for a legal right or claim will prevent it from being enforced or allowed if the delay has prejudiced the opposing party. … Laches is an equitable form of estoppel based on delay”. In other words, ya snooze, ya loose!

The Commonwealth of Virginia operates under the “Dillon’s Rule”. “Dillon’s Rule is derived from the two court decisions issued by Judge John F. Dillon of Iowa in 1868. It affirms the previously held, narrow interpretation of a local government’s authority, in which a sub-state government, (in our case, Westmoreland County) may engage in an activity only if it is specifically sanctioned by the state government”, (in our case, the Commonwealth of Virginia).

As per Westmoreland County, the Glebe Harbor community falls under the R-2, Residential District classification. I will be referring to the Westmoreland County Zoning Ordinance Amendments adopted by the Board of Supervisors on March 13, 2006, with a effective date of April 12, 2006 and last amended on December 11, 2017.

Westmoreland County Code “1-1.6.3 titled: Conflict with Private Easements, Agreements or Covenants. This Zoning Ordinance is not intended to abrogate, annul, or otherwise interfere with any private easement, agreement, covenant, restriction or other private legal relationship. However, where the regulations of this Zoning Ordinance are in conflict with, or more restrictive or impose higher standards than such easements, agreements, covenants or other private legal relationships, the regulations of this Zoning Ordinance shall govern. The County is responsible for enforcing this Zoning Ordinance; it does not enforce private agreements, easements, covenants or restrictions”.

It is very important that you read your covenants very carefully. There are particular words you need to pay attention to. Both Westmoreland County and the State of Virginia, have legal definitions on what particular words mean, to elevate any possible confusion, concerning specific codes.

A great example of this type of wording, is when you are married and you visit the DMV to register a new boat title. If you put the title in both names, there are two little words you need to understand. “Or” and “And”. If you use the word “or”, it means either spouse can sign the title, if you sell the boat. If you use the word “and”, it means that both signatures are required.

I will use our first covenant as an example. The word “No” means none, zero, nothing except the following or without exception. The word “any” means without exception and no choice is given. However, in a different context, the word “any” could mean “all that applies”. The phrase “other than” is very specific concerning the context it is written in, and means that you are limited to three specific structures. I am listing our covenants in their entirety, as they can be found in the public domain doing a simple search under their own heading.

Glebe Harbor Covenants


  1. No building shall be erected or maintained on any lot in said subdivision other than a private residence and a private garage and boat facilities for the sole use of the owner or occupant thereof.

This covenant is probably unenforceable by our Board of Directors due to laches unless they can show due diligence via certified violation letters, as well as court documents showing they have tried to enforce this covenant in the past to the present, regardless of where the violation occurred. I base my interpretation on our clubhouse, as well as properties that have multi-able accessory structures that have been established for years.

Westmoreland County forbids mobile homes in R-2 Residential Communities but does allow Modular Homes to be installed and we do have this style of home in our community. Westmoreland County also allows trailers and campers to be stored in our community. It is Westmoreland County that forbids camping except for designated campgrounds and tent camping on property with main residential structures.


  1. Any garage or other building erected or maintained on any lot in said subdivision must conform in appearance and construction to the residence on such lot.

This covenant is unenforceable as per the Secretary of our Board of Directors, who also represents our Association as their Attorney. All one has to do is drive through our community and look at all the garages, sheds, carports and workshops, to see that this covenant has not been enforced for years. If there is more then one accessory structure on any lot, it is now in violation of our first covenant as well. However, that does not mean it is in violation of Westmoreland County Code.


  1. No part of said premises shall be used for commercial or manufacturing purposes, nor shall any use be made of any lot which would constitute a nuisance or depreciate the value of adjoining lots.

The first part of this covenant is probably unenforceable by our Board of Directors  due to laches unless they can show due diligence via certified violation letters, as well as court documents showing they have tried to enforce this covenant regularly, regardless of where or when the violation occurred. Our community has businesses as well as home offices throughout our community and they have been there for years.

Even our own clubhouse, has a Glebe Harbor address listed in their official governing documents. They are in fact a Business and they are in fact operating that business within our community. The fact that residents can lease their amenities for profit from their homes, may also be considered a “Home Business”, especially to the IRS.

Westmoreland County does allow certain businesses to operate within R-2 communities. As per Westmoreland County Code 2-17.2 “Permitted Uses (by-right)” number (12) “ Home Occupation, Minor”.

Westmoreland County legal definition: “Home Occupation: A business, profession, occupation or trade conducted for gain or support within a residential building or its accessory buildings by a resident or residents of the dwelling which use is incidental and secondary to the use of the buildings for dwelling purposes and which does not change the residential character of such buildings. Home occupations are grouped into two classes: minor home occupations and major home occupations.

Minor home occupations are home occupations that meet the standards in Section 4-3.3 and thus have no or minimal potential impact on nearby properties. Major home occupations are home occupations that do not meet one or more of the standards for minor home occupations and thus may impact nearby properties without appropriate controls as provided in Section 4-3.4.”

Home Professional Office: The office, studio, or occupational room of a lawyer, architect, or other licensed person when (a) such use is conducted entirely within a dwelling which is a bona fide residence of the practitioner or within a conforming accessory building on the same parcel as the residence, and (b) not more than one other person is employed in the same occupation, and (c) there is no outside display of goods or advertising, other than a nameplate.

The last two restrictions concerning covenant number 3, “as well as any use of said lot that would create a nuisance or depreciate the value of adjoining lotsare in question, and would probably have to be decided by the Westmoreland County Land Use Administrator or in Westmoreland County Court, as they are very broadly written and are open to more then one interpretation as explained below.

Myself as well as my wife witnessed a prime example of this type of misinterpretation at our Association meeting on November 19th 2019. One of our Board Members was complaining and stated that something needed to be done concerning the way one of the property owners, had decorated their home/property, for the holidays.

Since this was simply this Board Members opinion, their request was quickly rejected by the rest of the Board and the statement was made that just because this Board Member did not like the “decorating style” of this property owner, that was not a reason for the Board to take action.

In my opinion, the property in question is one of the best kept properties in our community! You see, now we have three different interpretations/opinions as to what would classify as a “nuisance” concerning the same issue. Someones opinion has no relevance when it comes to having the authority, to try and force someone to stop doing something, they feel they have the right to do. That is why restrictive covenants must be written using very specific language.

A second example of this part of the covenant being questionable, is the restriction “ or depreciate the value of adjoining lots”. At this same meeting, the issue of the tree that had fallen on Erica Rd was brought up. One Board Member stated that they had many trees that had fallen on their road, and it did not bother them at all. The President then stated but this tree could be seen as soon as you entered our community! I volunteered to use my own vehicle and trailer to help remove this tree and I have yet to hear back from anyone.

It may be considered unlawful to hold one property owner responsible for a covenant violation, when other property owners are in violation of the same covenant as well. Take a nice slow drive down every one of our streets in our community and see how many property owners would be in violation. Now, think about the cost to each property owner for cutting up and removing their trees.


  1. No residential building shall be erected or maintained on any lot in said subdivision having a ground floor area of less than 1,000 sq. ft. on waterfront lots, and 750 sq. ft. On other lots, exclusive of porches, etc.

     

This covenant maybe enforceable, but we do have at least one home in our community that does not meet the waterfront requirements.


  1. No building shall be erected or maintained on any lot in said subdivision closer than 20 feet from front lot lines, nor closer than 5 feet from back or side lines, except boat facilities.

This covenant is unenforceable concerning new construction, as per Westmoreland County Code 2-17.4: The front setback is now 60 feet, and the sides and rear remain the same for “Accessory Structures” only. This covenant is not referring to resident structures. (Houses).

  1. No outside toilets or privies shall be erected or maintained on any lot in said subdivision, and all sanitary plumbing installed thereon shall conform with the minimum requirements of the Department of Health of Westmoreland County, Virginia, and of the State of Virginia.

 The first part of this covenant is probably unenforceable concerning new home construction and certain remodeling projects. All one has to do is drive through the community and you will see “Port a Potties” outside, when new homes or major remodeling jobs are being constructed.

As you can see by the first word in this covenant, “No”, is specific and without exception. The second part of this covenant is enforceable, as it deals with Westmoreland County Building Codes. It would be Westmoreland County that has the authority to enforce this requirement, not our Association. I say this as it would be impossible for our Board of Directors to know what has been, or has not been built to meet Westmoreland County code.

  1. No animals or birds, other than household pets, shall be kept on any lot in said subdivision.

This covenant is referring to typical house hold animals meaning no livestock. This covenant is enforceable but could be challenged under certain conditions, concerning the Fair Housing Amendments Act of 1988 that deals with Emotional Support Animals.


  1. All building exteriors must be of masonry, wood, or other material equal in quality thereto, and all exteriors, other than brick or stone, must be painted or stained and maintained. Exterior materials other than brick must be new.

The first part of this covenant is enforceable, “ All building exteriors must be of masonry, wood, or other material equal in quality thereto”. The second part of this covenant, “and all exteriors, other than brick or stone, must be painted or stained” is probably unenforceable concerning vinyl siding. The third part of this covenant, “and maintained” is close to being unenforceable if the Association cannot show due diligence via certified violation letters, as well as court documents, showing they have tried to enforce this covenant regardless of where the violation occurred.

In the years that we have lived in this community, there are homes that have not been maintained, and their condition has degraded with each passing year. The last part of this covenant, “Exterior materials other than brick must be new”, is enforceable.


  1. All exterior construction must be completed and closed in within 8 months of the commencement of construction and all foundations must be continuous and solid.

This covenant is enforceable under certain conditions. There are many things that can slow this type of progress that is outside of the control of the owner/builder. Lack of materials as well as weather or “acts of God”. These are just three examples. This covenant is one of the rare examples that could hold one property owner to another standard then another property owner.


  1. No house trailers or other trailers used for residential purposes will be permitted or kept on any lot in this subdivision.

This covenant is enforceable by both our covenants as well as Westmoreland County Code concerning R-2 communities. We need to understand that many times people will confuse campers, travel trailers or motor homes, with the meaning of this covenant. The key words here are “used for residential purposes”. A camper or motor home is not classified for use concerning residential purposes.

This description concerns mobile homes and has nothing to do with motor homes, fifth wheel or slide out campers. It simple means that you can not use a camper or mobile home, as a residence. Westmoreland County has a specific code that deals with trailers used for residential purposes. 2-15. Campgrounds, Mobile Home Parks and Travel Trailer Parks District (C-2).

They also have legal definitions that classify these types of trailers such as: “Travel Trailer: A vehicular, portable structure built on a chassis and designed to be used for temporary occupancy for travel, recreational or vacation use; with the manufacturer’s permanent identification ‘Travel Trailer’ thereon; and when factory equipped for the road, being of any length provided its gross weight does not exceed 4500 pounds, or being of any weight provided its overall length does not exceed twenty-nine (29) feet. For the purpose of this Ordinance, a travel trailer shall not be deemed a mobile home or camper.”

Why did Westmoreland County go to all this trouble just to explain what a “Travel Trailer” was? One word. Lobbyist! The recreational industry have been lobbying for years concerning the classification of certain vehicles concerning their multi-billion dollar industry. Once Federal Law is passed, it is adopted by States and passed down to Counties.


  1. The grass on the lots must be kept mowed to a height not to exceed 8 inches, and the failure to do so will allow the Seller to cut and charge a reasonable cost for same to the Purchaser.

This covenant is enforceable and is a great example of the explanation I gave when I made the statement of : “This covenant is probably unenforceable by our Board of Directors unless they can show due diligence via certified violation letters, as well as court documents showing they have tried to enforce this covenant, regardless of where the violation occurred”.

Our Association has been the Plaintiff in over a hundred court cases in the Westmoreland County Court concerning members being in violation of this covenant. The Westmoreland County Court online records go back to 2009, and the last case on record was in June of 2019, and more are being filed at this time. It mostly concerns property owners of vacant lots not paying for grass cutting services when their grass exceeds 8 inches.

Since they do not keep it mowed, the Association pays someone to cut the grass, or gives them the authority to do so, with the knowledge that the Association will allow the Lawn Service Company to use the Associations name, and file a Warrant in Dept, using a DBA. (Doing Business As).

It is very easy for the Association to establish proof of being diligent concerning the enforcement of this covenant, as it is recorded within the court system. Just so you know, they have only lost one case, and that ruling was overturned on appeal. Keep your grass cut!


  1. Lot owners who maintain private driveways onto their respective lots shall install culvert pipe according to State specifications along the street line where such driveways meet the Street.

This covenant is enforceable as per Virginia State Code. Just as the covenants states, there is only one condition that must be met. “according to State specifications”. The Association has no enforcement rights to force property owners to keep them cleaned out, and that is a part of our drainage problem we have in our community.

  1. Invalidation of any of these covenants by judgment or decree of a Court having jurisdiction shall in no way affect any of the other covenants herein which shall remain in full force and effect.

Number 13 is not a covenant, it is a legal statement. Simply put, if one covenant is deemed to be unenforceable by a Westmoreland County Court, the other covenants can still be enforced, if they are found to be in compliance with the law and have been enforced properly, since they were established.

This clause is found in most official documents as well as the Westmoreland County Code Section 1-1.7 Severability: “If any article, section, clause, or provision of this Zoning Ordinance is declared to be invalid or unconstitutional by any Virginia or Federal court, such decision shall not affect the validity of this Zoning Ordinance as a whole, or any part thereof other than the part which is declared to be unconstitutional or invalid”.

In closing, when I use the phrase “probably unenforceable, I use the word “probably” for legal reasons. I can not state something as fact, as all court cases are different, even-though they may be very similar in content. However, in my opinion, our Association would have a hard time enforcing some of our covenants, if it ever had to be settled in court.

Board Members of any Association have a duty to enforce community covenants in accordance with County, State and Federal laws. Their enforcement must be done in a timely manner, and must apply to any member under the control of the covenants. Enforcement must do done regardless of a property owners location, their relationship with Board Member past or present, or their financial well being.

Camping in our community is not a criminal offense nor is it restricted by our covenants. The Westmoreland County Sheriffs Office will not intervene concerning this issue. The Westmoreland County Land Use Office handles these types of complaints. If you have any questions concerning camping, please call the Westmoreland County Land Use Office and ask for Darren Lee. He can be reached at 804-493-0120.

Again, I am not an Attorney and the information provided is from my own experience / education, as well as my own research concerning Deed Covenants. This specific explanation is being written upon request of others as well as my own concerns over remarks that have been recently written as well as spoken, by members of our Board of Directors in 2019.

As with all legal matters, if you need additional information concerning our covenants, I highly recommend you contact an Attorney who specializes in this type of law. The best way to make sure you do not violate your covenants, is to read and make sure you understand them. I hope this explanation has maybe added to your knowledge, concerning our covenants. Your neighbor, Dana.

6 Comments

  • JR December 11, 2019 at 6:06 am

    I thought the county allowed carports.

    Reply
    • danatucker December 11, 2019 at 6:13 am

      They do, however, you still need to get a zoning permit, draw on your plot plan where it will be placed to make sure you meet the proper setbacks. If it is in the front of the house, it needs to be 60 feet from the closest part of the carport to the street, to the center line of the street. I will try and do a drawing to help explain what I am talking about.

      Reply
  • PO'ed December 11, 2019 at 9:52 am

    Does these restrictions apply to everyone in Glebe Harbor, even the houses that were first built?

    Reply
    • danatucker December 11, 2019 at 9:57 am

      Yes they do. The only difference is when the home was built. This would determine what version of the Westmoreland County Code would apply. It is called a “Grandfather Clause”. However, even if the home was build during an older version of the Code, anything done requiring a permit now, would have to be done to the most recent version, which is the one I listed in the beginning of this post.

      Reply
  • just wondering December 11, 2019 at 12:05 pm

    Is there anything someone can do if they may have done something illegal?

    Reply
    • danatucker December 11, 2019 at 6:53 pm

      You will need to check with the Land Use Department of Westmoreland County. If you need to apply for a variance, you will need to fill out their form. It is $600 to apply and you have no guarantee it will be granted. If it is as simple as applying for a zoning permit for something like a shed or carport, then you may be charged three times the normal fee.

      Reply

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