Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
Koontz, JJ., and Whiting, Senior Justice

LEE'S HILL HOMEOWNERS, et al.
                                             OPINION BY
v.   Record No. 942231              SENIOR JUSTICE HENRY H. WHITING
                                            November 3, 1995
RALPH DEWAYNE CARTER, et al.

            FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                       J. Peyton Farmer, Judge


      In this appeal, we decide whether the chancellor erred in

holding that an instrument creating easements in the common area

of a subdivision permits the developer to shift those easements

from one part of the common area to a newly added part of the

common area.
      In December 1989, Lee's Hill Partnership, the owner and

developer of a tract of over 1,000 acres in Spotsylvania County

(the developer), recorded a "Declaration for Lee's Hill" (the

declaration) subjecting the land to a number of "covenants,

restrictions, reservations, easements, servitudes, liens and

charges."   The declaration also provided for the establishment of

the "Lee's Hill Community Association, Inc." (the community

association), a nonstock corporation to which the developer would

convey fee simple title to various areas in its proposed

development.   Although these separate areas were apparently

conveyed to the community association at different times, they

were collectively described as the "common area" of the

development.

      The common area was to be owned by the community association

"for the benefit, use and enjoyment of the [lot] [o]wners," to

whom the developer granted "a non-exclusive right and easement of
use and enjoyment."   In February 1991, the developer conveyed

Parcel G, Section 1B of Lee's Hill to the community association

as part of the common area and apparently as "open space." 1

Parcel G is a long, narrow, triangular strip of land lying

generally south of land owned by Mary Lee Carter and Walter L.

Carter, Jr., the parents of Ralph Dewayne Carter, and fronting

the north side of Amelia Street.    The somewhat incomplete and

unsatisfactory record in this appeal does not fully describe

Parcel G.   It merely shows that Parcel G has a depth of 58.66

feet on its western boundary and narrows continuously to its

eastern boundary, but does not specify the lengths of Parcel G's

boundary with the Carters' land or of its frontage on Amelia

Street.
     After the developer's conveyance of Parcel G to the

community association, various lot owners and their families used

it for walking or jogging, sled riding, and as a place to

congregate and visit with neighbors.   The lot owners also

regarded this common area as an aesthetically pleasing "green

space" separating the subdivision property from "a very busy


     1
      The declaration does not define the term "open space," nor

does the deed to the community association indicate that the land

conveyed was to be treated as part of the open space.   However,

the witnesses and counsel for the lot owners described that land

as "green space" or "open space."




                                -2-
road."    At a time not shown in the record, the lot owners formed

an unincorporated association known as "Lee's Hill Homeowners" to

protect their individual rights "in a collective fashion." 2

     In May 1994, the community association conveyed 0.0479 acres

of Parcel G to the developer in exchange for the developer's

conveyance to the community association of 0.48489 acres located

elsewhere in the development as a substitute common area.      Lying

immediately south of the Carter land, the 0.0479 acre parcel

(Parcel G-2) begins 76.93 feet east of Parcel G's western

boundary, fronts 62.10 feet on the north side of Amelia Street,

and extends 40.67 feet and 29.91 feet, respectively, on its

western and eastern boundaries.
     Immediately thereafter, the developer conveyed Parcel G-2 to

Ralph Dewayne Carter and Robin Keith Carter (the Carters), who

had acquired part of his parents' land immediately north of

Parcel G-2.   Later, the Carters began to construct two driveways

across Parcel G-2 to serve a house they had moved to the land

north of Parcel G-2.   Whereupon, "Lee's Hill Homeowners" and


     2
      The only indication of the formation and purpose of "Lee's

Hill Homeowners" is in the averments of the bill of complaint,

which are denied in the Carters' answer to the bill of complaint.

 However, the Carters have not questioned the right of the

homeowners association to participate in the suit and this

appeal.




                                  -3-
Kelly M. Boehringer, a lot owner, (collectively the lot owners)

filed this suit against the Carters to enjoin their construction

and use of the driveways as an interference with their easements

in Parcel G, including Parcel G-2.

     Following an ore tenus hearing, the chancellor sustained the

Carters' motion to strike the lot owners' evidence on the grounds

that (1) the terms of the declaration gave the community

association and the developer the right to exchange one part of

the common area for another part, and (2) the lot owners had

failed to show that their easements were "materially and

adversely affect[ed]" by the exchange.   The lot owners appeal.
     In conformity with well-established appellate principles, we

have viewed the facts in the light most favorable to the lot

owners since the chancellor struck their evidence without hearing

the Carters' evidence.   Ward v. Ernst & Young, 246 Va. 317, 330,

435 S.E.2d 628, 634-35 (1993).

     The parties agree that the lot owners had easements in

Parcel G-2 that were appurtenant to their lots.   They disagree as

to whether those easements were terminated upon the community

association's conveyance to the developer.   Our decision is

controlled by the provisions of the developer's declaration and

the principle that if the pertinent terms of a written instrument

are clear and unambiguous, as we believe they are in this case,

we do not resort to rules of construction.   State Farm Fire and
Casualty Co. v. Walton, 244 Va. 498, 502, 423 S.E.2d 188, 191




                                 -4-
(1992).   Instead, we apply those terms as written.      Id.

                                  I.

     The lot owners assert that the provisions of § 3.8 of the

declaration prohibit this exchange of a part of the common area

for another part located elsewhere in the development.

Section 3.8 provides that each lot owner's easement in the common

area is "appurtenant to each Lot" and further provides that

"[a]ny purported conveyance or other transfer of such rights and

easements apart from the Lot to which such rights and easements
are appurtenant shall be void."     (Emphasis added.)    Clearly, this

provision is a prohibition against a lot owner's attempted

conveyance of these easements apart from a conveyance of the lot,

not a prohibition against the developer's transfer of these

easements appurtenant to each lot to another part of the common

area, the situation in this case.       Thus, we find no merit in this

assertion.

     Next, the lot owners contend that the declaration gives the

developer no clear and unambiguous right to extinguish their

easements in Parcel G-2 by reacquiring that parcel and conveying

it to the Carters.   They further contend that since the easements

were incapable of being extinguished, the developer's conveyance

of fee simple title to the Carters could not remove the burden

imposed upon Parcel G-2 by their recorded, perpetual easements.

     In response, the Carters assert that the developer's right

to extinguish the lot owners' easements in Parcel G-2 is clearly



                                  -5-
and unambiguously set forth in §§ 2.4 and 2.6 of the declaration.

They also assert that the terms of the declaration do not create

perpetual easements specifically in Parcel G-2, but rather

easements that may be shifted to other parcels of land within the

development.

       First, we consider whether the developer had a right to

reacquire Parcel G-2 and convey it to the Carters.   Section 2.4

of the declaration gives the community association the power to

"convey the Common Area owned in fee simple by the Association

. . . subject to [approval by any mortgagees of the property]."

Also, § 2.6 provides that the community association can "transfer

part of the Common Area to or at the direction of the [developer]

for the purpose of adjusting Lot lines or otherwise in connection

with the orderly subdivision and development of the Property."

However, if the minimum level of "open space" is reduced by any

such transfer, § 2.6 requires the developer to convey to the

community association such portion of its property as is

necessary to maintain that minimum level of "open space."    In our

opinion, these provisions clearly gave the community association

the right to convey Parcel G-2 to the developer and permitted the

developer to convey this land to the Carters, provided that the

developer conveyed to the community association other property

necessary to maintain the minimum level of "open space," which it

did.   Thus, we reject the contention that the developer was

barred from reacquiring Parcel G-2 and conveying that parcel to



                                 -6-
the Carters.

     Next, we consider whether the lot owners' easements in

Parcel G-2 were perpetual and, therefore, incapable of being

extinguished by these conveyances.    Looking at the language of

the declaration, we note that the easements are described as a

"non-exclusive right and easement of use and enjoyment in and to

the Common Area . . . ."   The declaration does not describe any

particular part of the common area, which, under the terms of the

declaration, is defined as "all of the Property, other than Lots,

then owned or leased by the Association or otherwise available to

the Association for the benefit, use and enjoyment of the

Owners."   And, as we have held, the developer and community

association reserved the right under §§ 2.4 and 2.6 of the

declaration to exchange and, thereafter, to convey parts of the

common area in the orderly subdivision and development of the

property, provided that the developer maintained the minimum

"open space" of each subdivision of the property.
     Accordingly, we do not think that the lot owners' easements

are affixed to a particular parcel of land, as the lot owners

claim, but can be shifted from time to time to other parcels of

land duly conveyed to the community association.    Hence, we

conclude that the community association and the developer had the

right to make this exchange of parts of the common area and to

extinguish the lot owners' specific easements in Parcel G-2.

                                II.




                                -7-
     We next consider the lot owners' claim that the evidence

that their easements in the balance of Parcel G were affected by

the conveyance of Parcel G-2 raised factual issues which could

not be resolved on a motion to strike.

     First, the lot owners cite the common law rule that a

servient owner cannot use his property in such manner as to make

the dominant owner's use of an easement less useful or

convenient.        Willing v. Booker, 160 Va. 461, 466, 168 S.E. 417,

419 (1933).        However, as the Carters note, the lot owners

acquired their easements in Parcel G subject to the provisions of

§§ 2.4 and 2.6 of the declaration giving the servient owners the

right to transfer the lot owners' easements in one part of the

common area to another part of the common area.       And the lot

owners introduced no evidence comparing the relative usefulness

and convenience of Parcel G and the substituted part of the
               3
common area.        Accordingly, the lot owners failed to carry their

burden of showing that their use of the substituted part of the

common area was less convenient or useful than their use of

Parcel G or its remainder after the conveyance of Parcel G-2.


     3
      In describing another part of the common area, Roger

Dressler, a lot owner, testified that "one other strip of land

that's off Amelia Drive [was] behind some other houses, and

. . . inaccessible by us," but he did not identify that strip of

land as the substituted part of the common area.




                                     -8-
     Next, the lot owners rely upon § 15.1(3) of the declaration.

Section 15.1(3) deals with the developer's unilateral right to

"relocate boundary lines between the Common Area and any Lots or

among any Lots; provided, however, that such relocation does not

materially and adversely affect any Owner other than the

[developer] and that such relocation is reflected in an approved

resubdivision of all or any part of the Property."   The lot

owners claim that their evidence raised a factual issue whether

their easements in Parcel G were "materially and adversely

affected."
     The difficulty with this claim is twofold.    First,

§ 15.1(3) deals only with the developer's unilateral right to

relocate lot boundaries.   Here, there is no relocation of

boundary lines, particularly those of the complaining lot owners,

but a conveyance of a part of the common area.    Second, as we

have noted earlier, the lot owners introduced no evidence

addressing the relative usefulness or convenience of their

easements in the former and substituted parts of the common area.

Hence, we find no merit in the lot owners' contention.

     Accordingly, we will affirm the final decree of the

chancellor.
                                                            Affirmed.




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