Present: All the Justices 

A. DALE SMITH, ET AL. 

v. Record No. 990164 OPINION BY JUSTICE ELIZABETH B. LACY 

 January 14, 2000 

CHESTERFIELD MEADOWS SHOPPING 

CENTER ASSOCIATES, L.P., ET AL. 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 A. Dale Smith and Richard M. Allen appeal the trial 

court's judgment sustaining a demurrer dismissing their bill 

of complaint seeking to have a restrictive covenant declared 

null and void. Finding that the pleadings were sufficient to 

state a cause of action, we will reverse the judgment of the 

trial court. 

 In 1979, Allen owned approximately 5.5 acres of land on 

the north side of Centralia Road at its intersection with 

State Route 10 in Chesterfield County. He sought and obtained 

a rezoning of the parcel to Agricultural (A) with a 

conditional use permit to build an office complex. Ernest P. 

Gates and Virginia Y. Gates (the Gates) owned a 5.5-acre tract 

on the south side of Centralia Road at that intersection. The 

Gates' home, known as "Wrexham," was located on their 

property. 

 On July 14, 1980, Allen and the Gates executed a 

restrictive covenant affecting Allen's property. Under the 

covenant, Allen's land was to be "used only for the purposes 
mentioned and allowed by the Special Conditional Use Permit 

granted by the Board of Supervisors on November 28, 1979, in 

case #79S101A for an office complex as reflected in the 

official minutes of the meeting." The covenant was to run 

with the land for a period of sixty years from the date of the 

covenant and it was recorded in the land records of 

Chesterfield County. 

 The Wrexham structure subsequently was relocated, the 

Gates' property was rezoned to "Commercial" use, a portion was 

sold to Chesterfield Meadows Shopping Center Associates, L.P., 

and Ukrop's Super Markets, Inc. (collectively "Chesterfield"), 

and the Chesterfield Meadows Shopping Center was constructed 

on the property. Allen's property was subsequently rezoned 

from Agricultural (A) to "Neighborhood Business" and a portion 

of the tract was sold to Smith. 

 On June 24, 1998, Smith and Allen filed a bill of 

complaint in the court below, pursuant to Code § 55-153, 

seeking to have the restrictive covenant declared void. 

Chesterfield filed a demurrer, which the trial court sustained 

by order entered on October 1, 1998. Smith and Allen were 

given 21 days from the date of entry of the order to amend 

their bill of complaint. On October 29, Allen and Smith filed 

a motion for nonsuit which the trial court granted on November 

2, 1998. Chesterfield filed a motion to vacate the court's 

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order of nonsuit, which was granted on November 23, 1998, 

based on the court's finding that it "lost jurisdiction on 

October 22, 1998 because no Amended Bill of Complaint had been 

filed or other Order entered." We awarded Smith and Allen 

this appeal. 

 Smith and Allen argue that the trial court erred in 

sustaining Chesterfield's demurrer because their bill of 

complaint adequately stated a cause of action. In a cause of 

action to have a restrictive covenant declared void, a party 

must prove that changed conditions have defeated the purpose 

of the restrictions, and the change must be "so radical as 

practically to destroy the essential objects and purposes of 

the agreement." Booker v. Old Dominion Land Co., 188 Va. 143, 

148, 49 S.E.2d 314, 317 (1948). Smith and Allen assert that 

the allegations contained in the bill of complaint that "[t]he 

restriction was intended to protect the historical nature of 

Wrexham," that the Wrexham structure had been relocated, and 

that the entire property upon which Wrexham was located is now 

zoned commercial and a shopping center has been built on the 

property, were sufficient to state a cause of action for 

declaring a restrictive covenant void. 

 Chesterfield responds first that our holding in Ward's 

Equipment, Inc. v. New Holland North America, Inc., 254 Va. 

379, 493 S.E.2d 516 (1997), bars consideration of Smith and 

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Allen's allegations that the purpose of the restrictive 

covenant was to protect the Wrexham structure. In Ward's 

Equipment, we held that factual allegations contradicted by 

the terms of authentic, unambiguous documents that are a part 

of the pleading may be disregarded by a court in considering a 

demurrer. Id. at 382, 493 S.E.2d 518. Chesterfield argues 

that the restrictive covenant, which was attached to the 

pleading, stated that "it is the desire of the parties hereto 

to restrict the land containing 5.523 acres in accordance with 

conditions imposed by the Board of Supervisors of Chesterfield 

County in case #79S101A." This statement, according to 

Chesterfield, is an unambiguous statement of the purpose of 

the restrictive covenant. Therefore, Chesterfield contends, 

Smith and Allen's argument that the purpose of the covenant 

was to preserve the Wrexham structure is a factual allegation 

in contradiction of the unambiguous covenant document, and is 

barred by the doctrine recognized by Ward's Equipment. We 

disagree. 

 The language quoted above from the restrictive covenant 

does not address the purpose of the covenant. Rather, the 

language describes the actual restriction that was imposed 

upon the land. The purpose of the covenant, namely, the 

reason why the parties chose to impose the restriction on the 

land, is not set forth in the document itself. Because the 

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document is silent as to the purpose of the restrictive 

covenant, the rule in Ward's Equipment does not prohibit the 

introduction of evidence on that subject, since such evidence 

would not be considered a factual allegation contradicted by 

the terms of the document. 

 Next, relying on Hechler Chevrolet v. General Motors 

Corp., 230 Va. 396, 337 S.E.2d 744 (1985), Chesterfield 

asserts that the introduction of evidence that the covenant 

was created to protect the Wrexham structure is barred by the 

parol evidence rule. In Hechler, parol evidence was not 

allowed to show prior dealings between the parties because 

there was no allegation that the contract in question was 

incomplete or ambiguous. Id. at 403, 337 S.E.2d at 749. In 

the instant case, Smith and Allen allege that the purpose of 

the restrictive covenant was not contained within the 

document, and that extrinsic evidence is needed to determine 

the reason for imposing restrictions on the land. In light of 

these allegations, we hold that the parol evidence rule does 

not bar extrinsic evidence of the purpose of the covenant in 

this case. 

 Finally, Chesterfield argues that the bill of complaint 

fails to allege sufficiently changed circumstances to support 

nullification of the restrictive covenant. According to 

Chesterfield, allegations that an historical house has been 

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relocated and a shopping center has been constructed in its 

place alone are insufficient to establish the type of change 

which would "destroy the essential objects and purposes" of 

the restrictive covenant. 

 Considering these allegations in the light most favorable 

to the plaintiffs, which we must when considering a demurrer, 

W.S. Carnes, Inc. v. Chesterfield County, 252 Va. 377, 384, 

478 S.E.2d 295, 300 (1996), we cannot say they are 

insufficient as a matter of law. The fact that the pleadings 

discuss changes to only a single property does not defeat the 

cause of action at the demurrer stage in the proceedings. 

 For the above reasons, we conclude that Smith and Allen's 

bill of complaint stated a cause of action. Accordingly, we 

will reverse the trial court's order sustaining the demurrer 

and remand the case for further proceedings.* 

Reversed and remanded.

 *

 Because we are reversing the trial court's order 

sustaining the demurrer, we do not reach the remaining 

assignments of error pertaining to nonsuit. 

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