ADR Exhaustion Waiver and Declarant Succession: Enforcing Anti-Commercial-Use Covenants Against a Golf-Course Owner/Declarant

3.1. Precedents Cited

Standards of review and summary judgment framework

• Edwards v. CSX Transp. Co., 150 F.4th 232, 235-36 (4th Cir. 2025): cited for de novo review of summary judgment and the “entitled to judgment as a matter of law” standard. Its role is methodological—anchoring the appellate lens, not supplying substantive HOA law.
• deWet v. Rollyson, 157 F.4th 344, 348-49 (4th Cir. 2025): cited for how courts treat cross-motions for summary judgment, including the usual approach of viewing facts in favor of the non-movant on each motion, and the exception applied here where material facts were not contested.

Virginia contract interpretation for restrictive covenants

• Manchester Oaks  Homeowners' Ass'n v. Batt, 732 S.E.2d 690, 697 (Va. 2012): the key Virginia authority invoked for two propositions the panel repeatedly used: (i) restrictive covenants are treated as contracts, and (ii) contract terms are given ordinary meaning in context. This case supplies the doctrinal bridge allowing conventional contract tools to control HOA declaration disputes.
• Plunkett v. Plunkett, 624 S.E.2d 39, 42 (Va. 2006): used for the harmonization principle—apparent conflicts among provisions should be reconciled to effectuate the parties’ intent. This was important to the enforcement-power issue, where JBWK argued narrower clauses implicitly limited broader grants of authority.

Specific-over-general arguments

• Bott v. N. Snellenburg & Co., 14 S.E.2d 372, 374-75 (Va. 1941): invoked by JBWK to argue that “more specific” provisions should control “more general” provisions. The panel did not reject that general maxim outright; instead, it reframed the inquiry as whether the “specific” provisions actually address the same subject matter and are “more specifically applicable” to the party/situation at hand.
• Levine v. Employers  Ins. Co. of Wausau, 887 F.3d 623, 630 (4th Cir. 2018): supplied the controlling articulation of Virginia’s approach—specific provisions prevail over general ones only when they deal with the same subject matter and are more specifically applicable. This citation was central to defeating JBWK’s attempt to use selective clauses (aimed at “Owners” or “Neighborhood” objections) to negate broad enforcement grants.

Statutory authority shaping the outcome

• Va. Code Ann. § 13.1-754(C) (corporate reinstatement): while not a “precedent,” it was outcome-determinative on declarant succession. By providing that reinstatement voids dissolution “as if the termination had never occurred,” the statute effectively cured Baymark’s inability to act during administrative dissolution and retroactively validated the recorded assignment.

3.2. Legal Reasoning

(A) Exhaustion/ADR as a litigation gate—and “waiver” as the contractual penalty

The Declaration imposed a stepped dispute-resolution protocol: written notice of the claim and proposed resolution; 30 days of negotiation; then submission to mediation; and only after 60 days could litigation begin. The Declaration expressly stated that “unexhausted” claims are “waived.”

The court treated this as a contractually enforceable precondition to suit. Applying it strictly, the panel held:

• The Association’s first warrant in debt (filed February 14, 2022) was premature because there was no mediation attempt.
• The Association repeated the same mistake with the second warrant in debt (filed September 28, 2022): no notice/negotiation/mediation preceded suit, and JBWK had not waived mediation before the filing. JBWK’s proposed waiver was expressly conditional, and the Association did not accept it until after suit had been filed.

By contrast, JBWK’s claims survived the exhaustion defense because the Association’s own initiation of litigation, coupled with counsel’s later email stating “the parties have agreed to waive the mediation at this time,” constituted waiver sufficient to allow adjudication of JBWK’s declaratory claims.

Key doctrinal move: the panel treated waiver as a two-way street. A party can insist on exhaustion—or relinquish it by litigation conduct and explicit statement. Here, the Association’s conduct barred its own claims while freeing JBWK’s responsive declaratory action from the same procedural trap.

(B) Declarant succession: recorded assignment + “take title” condition + corporate reinstatement relation-back

The Declaration required two conditions for successor-Declarant status: (1) the successor must “take title” to a portion of West Neck “for the purpose of development and/or sale”; and (2) the designation must be in a “Recorded instrument” executed by Baymark.

The factual puzzle was Baymark’s administrative dissolution when it executed/recorded the initial and corrected assignments. The court resolved this by applying Va. Code Ann. § 13.1-754(C): when Virginia reinstated Baymark, the earlier dissolution was voided “as if the termination had never occurred.” That relation-back effect retroactively validated Baymark’s June 2022 recorded assignment.

The “take title” condition was satisfied when JBWK merged with WCC in July 2022 and acquired the golf course assets. From that point, JBWK possessed both a recorded assignment and qualifying title—making it the Declarant as a matter of contract.

(C) Amendment limits: declarant-consent requirement enforced as written

The Association attempted to amend the Declaration in August 2022 by proclaiming that no Declarant existed and then stripping all declarant rights. The court treated the amendment procedure itself as a binding contractual constraint: amendments required Declarant consent. Because JBWK was the Declarant (by July 2022) and did not consent, the amendments were “procedurally deficient and unenforceable.”

The Association’s “no Declarant existed” theory failed for the same reason: Baymark’s reinstatement made it as though dissolution never occurred, preserving the chain of valid designation.

(D) Substantive use restriction: Exhibit C controls commercial activity across the entire development

On the merits of land use, the court emphasized three textual points:

1. The Declaration’s opening provisions state that all property in West Neck “shall be owned, conveyed, and used subject to all of the provisions” of the Declaration.
2. Exhibit C (“Initial Restrictions and Rules”) plainly limits use to “residential, recreational, and related purposes” and prohibits “business, trade . . . or similar activity.”
3. Those rules are “binding upon all [entities] having any right, title, or interest in any portion” of West Neck.

JBWK attempted to reframe the dispute around Section 6.1 (maintenance obligations on “Owners”), arguing it was not an “Owner.” The panel deemed that argument largely beside the point because the commercial-use prohibition did not arise from Section 6.1—it arose from Exhibit C, which JBWK did not dispute applied to it. Thus, even if JBWK were not an “Owner,” the anti-commercial-use covenant still bound it.

(E) Enforcement authority: broad grants to the Association include enforcement against the Declarant

The court treated the enforcement question as a straightforward textual reading exercise. Multiple provisions described the Association as: (i) “an integral part of the development plan” created “to enforce this Declaration,” (ii) an entity by whom the Declaration “shall be enforceable,” and (iii) “the primary entity responsible for enforcement of the Governing Documents.”

JBWK invoked Sections 8.4 and 11.3 to argue the Association’s authority is limited to “Owners” or that parties agreed not to “object” to changes outside a “Neighborhood.” The court neutralized these arguments using the Virginia “specific vs. general” framework as articulated in Levine v. Employers  Ins. Co. of Wausau:

• If Section 8.4 applies to JBWK, it supports enforcement; if it does not, it cannot be used as a “more specifically applicable” limitation that overrides broader enforcement grants.
• Section 11.3 did not eliminate enforcement because the relevant question was not whether the golf course is a “Neighborhood,” but whether the Association “acquire[d] an[] interest” in West Neck. The court characterized the Association’s “interest” as structural—created by the Declaration and tied to the development plan, including the golf course.

The result is a strong (though unpublished) statement that an HOA’s express enforcement mandate can reach the Declarant and amenity property when the declaration’s text says so—without being defeated by isolated provisions addressing different subjects.

3.3. Impact

Even as an unpublished decision, the opinion is likely to be cited persuasively—especially in Virginia federal courts and in negotiations—because it organizes several recurring community-association disputes into a predictable, text-first framework:

• ADR/exhaustion clauses will be enforced as written, including “waiver” remedies. Associations and owners/developers should treat pre-suit mediation requirements as true conditions precedent, not aspirational policies. Premature “warrant in debt” filings (or similar actions) can permanently forfeit substantive relief.
• Litigation conduct can waive exhaustion. A party that sues first, or explicitly agrees to waive mediation, risks eliminating the procedural shield it might otherwise wield against the other side’s declaratory or defensive claims.
• Corporate reinstatement can stabilize chains of title and governance. The court’s reliance on Va. Code Ann. § 13.1-754(C) underscores that administrative dissolution may not be the end of corporate capacity for past acts once reinstatement occurs—potentially validating governance assignments retroactively.
• Use restrictions can bind “private amenities” like golf courses. Where a declaration states that all property is subject to the covenants and expressly prohibits business activity, amenity owners (including successors and declarants) face substantial risk in monetizing idle courses through commercial agriculture or similar ventures.
• Association enforcement can extend to declarants. If the governing documents broadly grant enforcement authority, courts may reject attempts to carve out declarants via narrow or context-specific clauses.