Raintree of Albermarle Homeowners Ass’n Inc. v. Jones

Jones (Defendant) owned property in a subdivision that was subject to the following restrictive covenant: residents could not park buses, commercial vehicles, or motor homes could not be parked on their property unless it was garaged, and no truck of any kind could be parked overnight on the property unless it was garaged. Defendant bought a tow truck, also described as a small “wrecker,” and parked it on his property. Raintree of Albermarle Homeowners Association (Plaintiff) sued to enjoin Defendant from continuing to park this tow truck on his property. Defendant contended that Plaintiff had lost its right to enforce the subject covenant because Plaintiff failed to enforce it against two other homeowners, Nicely and Powell, who occasionally parked pickup trucks on their respective properties. The trial court held that although Defendant violated the covenant, Plaintiff could not enforce it because Plaintiff did not enforce it uniformly against other owners in the subdivision. Plaintiff appealed.