October 17, 2026
When the HOA contends a resident violated a rule, the accused may wonder if the rule is unenforceable because of other changes in the use or alteration of structures in the subdivision allowed to continue since the creation of the rule. This is called “selective enforcement.” Does selective enforcement make HOA restrictions unenforceable? That is a reasonable question. But under Virginia law, inconsistent enforcement does not automatically make a restrictive covenant unenforceable. The answer usually depends on the covenant’s language, its purpose, the association’s prior conduct, and the effect of other violations on the community as a whole.
It is human nature to compare oneself with others when accused. They see varying uses and alterations that developed over time and draw their own conclusions based on a sense of fairness. This tendency to compare reflects the fact that the developer made the lots and homes look similar or at least cohesive in some way. One may not be able to avoid comparison during each drive in and out of the neighborhood. This has to do with the peer pressure within and among social classes. Comparison is tricky. Good examples can draw people upward. On the downside, comparison can breed envy or snobbishness, poisoning relationships. If the principle of treating others as one would want to be treated breaks down, mental alarm bells go off. The “golden rule” runs like a thread through community association law. Yet, restrictive covenants are not really expressions of the golden rule. They require everyone to do more specific things.
Whenever a lot owner receives a notice of violation, they immediately think about other houses in the neighborhood that are doing the same thing that they have. When they confront their leaders or management about this, the latter simply point back to the rule. The recorded instruments form the “contract” between the owners. The covenants provide a specific set of parameters for what one ought to expect parameters that are supposed to be clearer and more fair than individual opinions or informal understandings. When the rule appears contrary to the practices and patterns seen in the subdivision, many lot owners wonder if the changes on the ground have nullified the developer’s, “dead hand.” Many people research this issue on Artificial Intelligence programs and receive misleading answers. AI tends to validate negative emotions by rendering an answer favorable to the phrasing of the question.
In Virginia, like most states, the burden of proof to nullify a recorded restriction on the grounds of changed conditions is more onerous than what AI leads many people to believe. According to judicial precedent, the party asserting that the recorded restriction is unenforceable or because changed conditions has the burden of proving that the purpose of the restriction can no longer be achieved. Conditions must have changed so substantially that the essential purpose of the covenant is defeated. The legal precedents require the party attacking the restriction to prove that there was “radical change.” The HOA’s or neighbor’s ability to enforce the restriction is not forfeited by mere failure to object to similar violations in the same neighborhood. How does one distinguish between the “radical change” that nullifies a rule and “ordinary” lapses in enforcement that do not deprive the plaintiff of a remedy? Consider a few case decisions:
- If the homeowner installs a fence that violates a prohibition against side yard walls, the mere fact that some other lot owners have been getting away with having side yard fences does not nullify the rule. Village Gate HOA. v. Hales, 219 Va. 321 (1978).
- If the rules only allow split rail fences, but the developer approved some other fence styles, this is insufficient to nullify the rule requiring split rail fences. Melmore II, L.C. v. Boyer, 45 Va. Cir. 178 (Loudoun Cir. Ct. 1998).
- A defendant constructed a garage without architectural approval. When he did apply, the committee denied it. Defendants identified other outstanding violations in the community. The court declined to find abandonment of the rule requiring architectural approval for alterations. Sugarland Run HOA v. Couzins, 28 Va. Cir. 334 (Loudoun Co. 1992)
- Norfolk Circuit Court found that if a platted street was not constructed, a lot owners were not required to observe a setback rule based on the street location. Miller v. Grinnan, 86 Va. Cir. 446 (Norfolk 2013).
- Where a covenant protected the historic character of an adjacent property, and that historic home was later relocated to a different location and the agricultural neighborhood became a commercialized. This constituted a “radical change” that nullified enforcement of the covenant. Chesterfield Meadows Shopping Center Assoc.. v. Smith, 264 Va. 350 (2002).
- There were two lots in a subdivision. One lot bore a restriction that it must be sold with the other. But the other lot was not burdened with a reciprocal restriction. The court found the purpose of the restriction defeated. Wells v. Beville (March 31, 2022 unpublished Supreme Court of Virginia decision).
- A restriction forbade commercial uses. There were some commercial uses surrounding the lot. The subdivision did retain its residential character. The court found that the existence of those commercial uses nearby did not defeat the purpose. River Heights Assocs. v. Batten, 267 Va. 262 (2004)
As you can see, “radical change” is rarely found where the defendant merely pointed out various other lots around them also breaking the rule. Seem to violate the principle of mutuality that the HOA, as the enforcer, should not expressly or implicitly not condone the violation of the rule for one and not another, especially since all of the directors are also burdened by the same rule. However, the courts tend to look at restrictions as something more than a legal mandate asserted by a peer group. What the restriction seeks to achieve ought not to be defeated by a few violations. In other words, two wrongs do not make a right. The protection afforded by the recorded covenant is not lost merely because the HOA fails to properly enforce it. A HOA may lose its ability to enforce a covenant by express waiver. The HOA may change or nullify the rule by amending the declaration or handbook. But in the end the HOA’s role in covenant enforcement is understood in terms of contract law.
Unfortunately, the concept of “selective enforcement” can be ambiguous. Although the “radical change” standard is enforcement-friendly and not often useful to owners who receive notices of violation, this does not mean that everyone has to do as their HOA orders them at all times. There are other grounds upon which enforcement activity may be resisted, as discussed in other articles on this website. For example, the rule may be inapplicable. In other cases, the rule may be valid but cannot be enforced due to abandonment, waiver or estoppel. That inquiry focuses instead on the HOA’s particular actions or communications.
Maryland also applies the “radical change” rule. Dumbarton Improvement Assn v. Druid Ridge Cemetery Co., 434 Md. 37 (2013).
In 2026, the D.C. Court of Appeals applied the “radical change” doctrine. In that case, the landowner wanted to use an alleyway property as a large nightclub featuring exotic dancing. However, a restriction against nightclub use burdened the property. The landowner believed that it could operate the property as a nightclub without unreasonably burdening the neighbors. D.C. ruled against them, rejecting a suggestion to adopt the “reasonableness” rule used in New Jersey. DTLD, LLC v. Power Station Ltd. P’ship, 350 A.3d 1285 (D.C. 2026).
New Jersey courts apply a reasonableness test: “‘reasonableness’ is necessarily a fact sensitive issue involving an inquiry into present business conditions and other factors specific to the covenant at issue.” In addition to issues of ambiguity or non-ambiguity of the restrictive covenant language and the property purchaser’s actual or constructive notice of the restriction, the factors they consider are: (1) the intention of the parties when the covenant was executed and whether the parties had a viable purpose which did not at the time interfere with existing commercial laws or public policy; (2) whether the covenant had an impact on the consideration paid, “a measure of the value to the parties of the covenant at the time”; (3) whether the covenant is reasonable concerning area, time, or duration (with a caveat that covenants that extend for perpetuity may often be unreasonable); (4) whether the covenant imposes an unreasonable restraint on trade (such as “where there is limited space available to conduct certain business activities”); (5) whether the covenant interferes with the public interest or the public welfare; and (6) whether, even if the covenant was reasonable at the time it was executed, “changed circumstances” now make the covenant unreasonable. Davidson Bros. v. D. Katz & Sons, 121 N.J. 196 (1990). This is not currently the law in Virginia, Maryland or D.C.
Given that much of the advice that one may receive from artificial intelligence is misleading, homeowners ought to consult with an attorney before “digging in” opposition to a notice of violation, complaint or lawsuit regarding challenged alterations or use of their property.
