Contractual Mediation Exhaustion in HOA Declarations & Retroactive Corporate Reinstatement Validating Declarant Succession

I. Introduction

West Neck Community Association, Inc. v. JBWK, LLC is a cross-appeal from the Eastern District of Virginia arising out of a conflict over a 55+ residential golfing community in Virginia Beach, governed by a lengthy Declaration of Covenants, Conditions, and Restrictions (the “Declaration”). The dispute escalated after the golf course changed hands following the developer’s bankruptcy, and the new operator began using the course to grow and sell trees.

The principal parties were:

  • West Neck Community Association, Inc. (the “Association”), tasked by the Declaration with administering and enforcing community restrictions; and
  • JBWK, LLC (“JBWK”), which leased and later acquired the golf course and sought recognition as the successor “Declarant.”

The core issues included:

  • whether the Association waived its claims by failing to follow the Declaration’s pre-suit negotiation/mediation (“exhaustion”) procedures;
  • whether JBWK validly became the successor Declarant, particularly given the original declarant’s administrative dissolution and later reinstatement;
  • whether the Association could unilaterally amend the Declaration to strip declarant powers;
  • whether operating a commercial tree nursery on the golf course violated the Declaration’s use restrictions; and
  • whether the Association could enforce the Declaration against the Declarant.

The Fourth Circuit affirmed the district court’s mixed summary-judgment outcome: JBWK prevailed on declarant status and invalidity of the Association’s unilateral amendments, while the Association prevailed on the merits that commercial nursery activity violated the Declaration and that the Association has enforcement authority—yet the Association still lost its own affirmative claims due to noncompliance with the Declaration’s contractual dispute-resolution prerequisites.

II. Summary of the Opinion

The Fourth Circuit (per curiam) affirmed in full and held:

  • Exhaustion/Waiver: The Association’s claims were waived because it sued without providing required notice and without engaging in the Declaration’s required negotiation/mediation process. JBWK’s claims were reachable because the Association waived its ability to insist on mediation by filing suit and expressly acknowledging a waiver “at this time.”
  • Declarant Status: JBWK became Declarant no later than July 2022 when, after Baymark’s recorded assignment, JBWK merged with the golf course owner and took title—satisfying the Declaration’s requirements for successor declarant designation.
  • Amendments: The Association’s August 2022 amendments were invalid because the Declaration required the Declarant’s consent, and JBWK was Declarant by then.
  • Commercial Use: The Declaration’s express prohibition on business activity barred JBWK’s commercial tree nursery on the golf course.
  • Enforcement Authority: The Declaration empowered the Association to enforce restrictions against all property and interests within West Neck, including the Declarant; the provisions JBWK cited did not narrow that authority.

Although unpublished and “not binding precedent in this circuit,” the decision provides a clear, contract-centered roadmap for litigating (and avoiding) HOA/developer covenant disputes in Virginia federal courts.

III. Analysis

A. Precedents Cited

1. Edwards v. CSX Transp. Co. (summary judgment standard; de novo review)

The court cited Edwards v. CSX Transp. Co., 150 F.4th 232, 235-36 (4th Cir. 2025) to confirm the appellate posture: summary judgment rulings are reviewed de novo, and the movant must be entitled to judgment as a matter of law when facts are viewed in the non-movant’s favor. This case supplied the doctrinal framing for reviewing the district court’s contract-based summary judgments.

2. deWet v. Rollyson (cross-motions for summary judgment)

The court relied on deWet v. Rollyson, 157 F.4th 344, 348-49 (4th Cir. 2025) for how to evaluate cross-motions: ordinarily each motion is analyzed separately with inferences favoring the opponent, but where (as here) material facts are not disputed, the claims can be considered “in tandem.” That procedural posture mattered because the Fourth Circuit treated the key events (assignment, merger, reinstatement, filing dates, and the Declaration’s text) as essentially undisputed, making this a largely interpretive exercise.

3. Manchester Oaks Homeowners' Ass'n v. Batt (restrictive covenants as contracts)

The court anchored the merits analysis in Manchester Oaks Homeowners' Ass'n v. Batt, 732 S.E.2d 690, 697 (Va. 2012), which characterizes restrictive covenants under Virginia law as contracts. This enabled the court to apply standard Virginia contract interpretation principles to the Declaration rather than treating it as a free-floating property code. The decision’s repeated emphasis on “plain meaning,” “context,” and harmonization flows directly from this contract lens.

4. Plunkett v. Plunkett (ordinary meaning; harmonization of provisions)

The court cited Plunkett v. Plunkett, 624 S.E.2d 39, 42 (Va. 2006) for two central interpretive rules: (i) terms receive their ordinary meaning in context of the whole contract, and (ii) apparent conflicts should be harmonized to effectuate intent. This was especially important when JBWK attempted to use selected provisions (e.g., Sections 8.4 and 11.3) to narrow the Association’s broad enforcement language in Article I and elsewhere.

5. Bott v. N. Snellenburg & Co. (specific vs. general provisions—invoked by JBWK)

JBWK cited Bott v. N. Snellenburg & Co., 14 S.E.2d 372, 374-75 (Va. 1941) for the proposition that more specific provisions control over general ones. The Fourth Circuit did not reject the canon outright; instead, it reframed its proper application through a modern articulation (via Levine): the specific provision must be more specifically applicable to the same subject matter, not merely narrower language in the abstract. Thus, Bott served as the foil against which the court clarified that “specific controls general” is not a universal eraser of broad grants of authority.

6. Levine v. Employers Ins. Co. of Wausau (Virginia’s “specific over general” principle, properly applied)

The court relied on Levine v. Employers Ins. Co. of Wausau, 887 F.3d 623, 630 (4th Cir. 2018) to explain the operative contract principle: “Virginia follows the well-settled principle in contract law of applying specific provisions of a contract over more general provisions dealing with the same subject matter.” The emphasized limitation—“same subject matter”—was decisive in rejecting JBWK’s attempt to treat Sections 8.4 and 11.3 as categorical limits on Association enforcement.

B. Legal Reasoning

1. Exhaustion as a contractual condition precedent—and waiver by premature suit

The court treated the Declaration’s dispute-resolution procedure (notice → negotiation → mediation → only then litigation) as a mandatory contractual precondition to suit. Two holdings are particularly salient:

  • The Association waived its claims by suing first and mediating later (or not at all). Because the Declaration declared unexhausted claims “waived,” the consequence was dismissal with prejudice of the Association’s affirmative claims.
  • The Association’s filing suit waived its right to insist on JBWK’s exhaustion for JBWK’s responsive declaratory claims, reinforced by the Association’s counsel’s email stating the parties “agreed to waive the mediation at this time.”

Practically, the decision underscores that parties cannot use contractual ADR as a one-way ratchet—invoking it only when strategically convenient after initiating litigation.

2. Declarant succession: recorded assignment + taking title, and the effect of corporate reinstatement

The Declaration required two steps for a successor Declarant: (i) designation “in a Recorded instrument” by the existing Declarant, and (ii) the successor must “take title” to a portion of the property for development and/or sale. The court found both satisfied: Baymark recorded an assignment (corrected by June 2022), and JBWK took title when it merged with and absorbed the golf course owner in July 2022.

The more legally intricate obstacle—Baymark’s administrative dissolution—was resolved by Virginia’s reinstatement statute: Va. Code Ann. § 13.1-754(C), which provides that reinstatement voids the earlier dissolution “as if the termination had never occurred.” The court applied this retroactivity straightforwardly: once reinstated, Baymark is treated as having continuously existed, thereby validating the recorded assignment chain for purposes of the Declaration.

This is a powerful illustration of how corporate-status “curing” statutes can decisively affect property-governance rights (like declarant powers) that depend on formal acts (like recording instruments).

3. Amendments: when declarant consent is required, “no declarant” theories fail if the original declarant is retroactively reinstated

The Association attempted to amend the Declaration on the premise that Baymark’s dissolution meant there was “no Declarant,” enabling unilateral amendment and stripping of declarant rights. The court’s logic was linear:

  • Baymark’s reinstatement made it as though dissolution never occurred under Va. Code Ann. § 13.1-754(C).
  • Therefore, Baymark could and did effect a valid recorded assignment to JBWK.
  • Once JBWK became Declarant (July 2022), declarant consent was required for amendments.
  • Amendments passed without JBWK’s knowledge or approval were procedurally invalid.

4. Use restrictions: commercial tree nursery barred by the Declaration’s plain text

The court relied heavily on the Declaration’s global-subjection clause (“All property … shall be … used subject to all of the provisions”) and Exhibit C’s explicit restriction: property “shall be used only for residential, recreational, and related purposes” and not for “any business, trade … or similar activity.”

JBWK attempted to shift attention to Section 6.1 (maintenance obligations said to apply to “Owners”), but the court deemed that immaterial because the commercial-use prohibition did not come from Section 6.1; it came from Exhibit C, which bound all holders of any right, title, or interest. In other words, even if one obligation is owner-limited, the relevant restriction was not.

5. Enforcement authority: broad grants to the Association are not negated by provisions that do not squarely address the same subject

The court found abundant textual support that the Association may enforce the Declaration against the Declarant:

  • Section 1.1 (Association created to “administer and enforce”);
  • Section 1.2 (Declaration “enforceable by” the Declarant, the Association, and any Owner);
  • language calling the Association the “primary entity responsible for enforcement”; and
  • bylaw language granting sanction power for “any violation.”

JBWK’s reliance on Section 8.4 (“Every Owner and occupant … shall comply”) and Section 11.3 (limiting certain objections to changes of use “outside the Neighborhood”) failed because:

  • under Levine v. Employers Ins. Co. of Wausau, “specific over general” applies only to provisions dealing with the same subject matter and that are more specifically applicable; and
  • Section 11.3 did not clearly apply to the Association in its institutional enforcement capacity, and even if it did, the Association’s interest (created by the Declaration) extends to the development plan that includes the golf course.

C. Impact

1. Dispute-resolution provisions in HOA declarations are litigation-critical

The decision’s most practice-shaping lesson is remedial: when a declaration makes negotiation/mediation a precondition and states noncompliance results in waiver, courts may enforce that bargain strictly. Associations (and owners/declarants) should treat pre-suit steps as mandatory, documented, and date-certain—especially where small-claims filings (like warrants in debt) might seem informal but still trigger waiver consequences.

2. Corporate “reinstatement” can resurrect governance powers with retroactive force

By treating reinstatement as erasing dissolution “as if … never occurred,” the opinion highlights that parties cannot safely assume dissolved developers are permanently incapacitated for covenant governance purposes. Successor-declarant claims may turn on later corporate cures, and title-governance planning must account for that statutory retroactivity.

3. Amendment power fights will be decided by procedure as much as substance

The Association’s substantive goal (preventing perceived overreach by the golf course owner) failed because it proceeded through procedurally defective amendments. The case signals that in declaration regimes, amendment formalities—who must consent, in what capacity, at what time—are often dispositive.

4. Use restrictions can bind “amenity” parcels even when owned outside the association

The court’s reading reinforces that “private amenities” (like a golf course) may remain fully subject to community covenants even when owned by non-association entities, so long as the declaration text broadly subjects all property/interests to its restrictions.

Note: Because the opinion is unpublished, it does not bind future Fourth Circuit panels. Nonetheless, its reasoning may be persuasive in similar Virginia covenant disputes, particularly in federal courts applying Virginia law.

IV. Complex Concepts Simplified

  • Restrictive covenants as contracts: In Virginia, community covenants are interpreted like written contracts—courts prioritize the text’s ordinary meaning and structure.
  • Declarant: The party (typically the developer) granted special governance rights (e.g., amendment veto) during development; declarations often allow designation of a “successor declarant.”
  • Recorded instrument: A formal document filed in land records. If the declaration requires recording, informal letters or unrecorded agreements usually do not suffice.
  • Administrative dissolution vs. reinstatement: Dissolution ends a corporation’s legal status; reinstatement can retroactively restore it. Here, reinstatement operated “as if” dissolution never happened under Va. Code Ann. § 13.1-754(C).
  • Exhaustion / condition precedent: A contractual step that must occur before suing (e.g., notice and mediation). If the contract says failure equals “waiver,” the claim can be lost regardless of its merits.
  • Warrant in debt: A standardized Virginia form often used in lower courts for money claims; filing it can still count as “instituting” litigation for contractual exhaustion purposes.
  • “Specific controls the general”: A contract canon that applies only when the provisions address the same subject matter and the specific term truly governs the dispute at hand (as explained via Levine v. Employers Ins. Co. of Wausau).

V. Conclusion

The Fourth Circuit’s decision affirms a text-forward, contract-law approach to HOA declarations in Virginia: (1) pre-suit negotiation/mediation provisions can operate as strict conditions precedent with waiver consequences; (2) corporate reinstatement can retroactively validate a developer’s recorded assignment of declarant rights; (3) associations cannot bypass declarant-consent requirements through unilateral amendments when a valid successor declarant exists; (4) explicit noncommercial use restrictions will be enforced against owners of private amenities; and (5) broad association enforcement authority generally reaches even the declarant unless the declaration unmistakably says otherwise.