Present: Kinser, C.J, Lemons, Goodwyn, and Millette, JJ., and
Koontz, S.J.
LINZIE ZINONE
OPINION BY
v. Record No. 101085 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
September 16, 2011
LEE'S CROSSING HOMEOWNERS
ASSOCIATION, ET AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas B. Horne, Judge
In this appeal, we consider whether certain provisions of
the Virginia Property Owners' Association Act ("POAA"), Code
§§ 55-508 through -516.2, restrict the declarant of a recorded
declaration creating a property owners' association from
unilaterally amending that declaration under its express term
providing for such authority. The issue, which presents a
purely legal question of statutory construction, was decided in
the circuit court upon cross motions for partial summary
judgment based on the pleadings. Accordingly, we will review
the judgment under a de novo standard. Addison v. Jurgelsky,
281 Va. 205, 208, 704 S.E.2d 402, 404 (2011); Conger v. Barrett,
280 Va. 627, 630, 702 S.E.2d 117, 118 (2010).
BACKGROUND
The material facts are not in dispute. Lee's Crossing is a
residential subdivision in Loudoun County created in 1999 and is
subject to a Declaration of Protective Covenants ("the
Declaration") recorded in the County's land records by the
Merritt Family Limited Partnership I, the developer of the
subdivision, and Jack H. Merritt, Jr., the general partner
(collectively, "Merritt"). The Declaration created Lee's
Crossing Homeowners Association ("the Association") for the
Lee's Crossing subdivision subject to the provisions of the
POAA. Linzie Zinone owns property within the Lee's Crossing
subdivision and, thus, is a member of the Association.
As relevant to this appeal, section 17(i) of the
Declaration provided: 1
Amendments. These Covenants may be modified or
amended upon an affirmative vote of two-thirds of the
membership of the Association. Declarant reserves the
right to unilaterally amend this Declaration anytime
within two years of the recordation of this
Declaration.
Pursuant to this provision of the Declaration, Merritt made
numerous unilateral amendments to the Declaration between 1999
and 2004, including several which extended the period of time
during which unilateral amendments by the declarant would be
permitted.
In an amended complaint filed April 24, 2009 in the Circuit
Court of Loudoun County, Zinone sought declaratory and
injunctive relief and an award of monetary damages against the
1
The comparable provision appearing in the most recent
version of the Declaration (the Corrected Third Amended and
Restated Declaration of Protective Covenants, dated October 14,
2004) is set out in section 17(h).
2
Association and Merritt. Zinone alleged that the Association
had "perpetrated" the "misuse of power and other ineffective and
unlawful activities" by permitting Merritt to exercise authority
under the Declaration to unilaterally amend its provisions to
the detriment of the individual property owners within Lee's
Crossing. Zinone contended that Merritt had made multiple,
unilateral amendments to the Declaration that, among other
things, impacted architectural controls on the individual
property owners and the assessment of regular fees and fines
collected by the Association, including fines imposed on Zinone
for alleged violations of the Declaration as amended by Merritt.
Zinone did not expressly reference the application of the
POAA in her amended complaint. However, in a supplemental bill
of particulars, she asserted that the unilateral amendment
provision of section 17(i) of the Declaration was in conflict
with Code § 55-515.1(D), which she asserted required that any
amendment to a declaration be approved by a two-thirds vote of
the property owners. Moreover, she maintained that the POAA
provided that a unilateral amendment of a declaration by a
declarant was allowed only under the limited circumstances
provided for in Code § 55-515.2(F), which she maintained did not
apply to any of the amendments made by Merritt. Ultimately, it
was the application of these two provisions of the POAA which
3
became the focus of the parties and the circuit court in the
resolution of the parties' dispute.
Merritt and the Association filed motions for partial
summary judgment, asserting identical arguments that Code §§ 55-
515.1(D), -515.1(F), and -515.2(F) did not bar a declarant from
providing in a declaration the power to unilaterally amend the
declaration. Rather, they contended that these provisions of
the POAA merely provided ancillary and supplemental rights
allowing for amendment of a declaration in the absence of an
express, less restrictive manner of amendment within the
declaration. 2
Zinone also filed a motion for partial summary judgment in
which she contended that Code § 55-515.1(D) was a mandatory
limitation on the power of a declarant or a property owners'
association to amend a declaration except by a two-thirds vote
of the membership. Zinone further contended that Dogwood Valley
Citizens Association, Inc. v. Shifflett, 275 Va. 197, 203-04,
654 S.E.2d 894, 897 (2008), supported her interpretation of Code
§ 55-515.1(D), asserting that the case stood for the proposition
2
The Association further contended that Zinone's action was
time-barred under Code § 55-515.1(E). The circuit court had
previously overruled Merritt's and the Association's pleas in
bar asserting the application of Code § 55-515.1(E) and did not
expressly rule on this aspect of the Association's motion for
summary judgment. Although both the Association and Merritt
have reasserted the issue of whether the action was time-barred
in this appeal, the issue is waived.
4
that the only exception to the two-thirds vote requirement
allowing for unilateral amendment of a declaration was under the
"limited circumstances" set out in Code § 55-515.2(F).
The circuit court conducted a hearing on the cross-motions
for partial summary judgment on March 9, 2010. At the
conclusion of the hearing, after receiving argument in accord
with the parties' positions as stated in their motions and
supporting memoranda, the court entered an order sustaining
Merritt's and the Association's motions with respect to their
interpretation of Code § 55-515.1(D), and overruling Zinone's
motion. Thereafter, Zinone took a nonsuit to the remaining
personal claims against Mr. Merritt. This appeal followed.
DISCUSSION
Zinone has made five assignments of error to the judgment
of the circuit court. However, the substance of her argument,
essentially identical to that made in the circuit court, is that
the provision for unilateral amendment of the Declaration
contained in section 17(i) is inconsistent with Code §§ 55-
515.1(D) and -515.2(F), and that the plain language of the POAA
and our decision in Dogwood Valley Citizens Ass'n establish that
a declaration can only be amended as provided for in the POAA.
5
Code § 55-515.1(D) was added to the POAA effective July 1,
1999, 3 and provides that:
[a] declaration may be amended by a two-thirds vote of
the owners. This subsection may be applied to an
association subject to a declaration recorded prior to
July 1, 1999, if the declaration is silent on how it
may be amended or upon the amendment of that
declaration in accordance with its requirements.
Code § 55-515.2(F), as effective July 1, 1998, 4 provides in
relevant part:
The declarant may unilaterally execute and record
a corrective amendment or supplement to the
declaration to correct a mathematical mistake, an
inconsistency or a scrivener's error, or clarify an
ambiguity in the declaration with respect to an
objectively verifiable fact (including without
limitation recalculating the liability for assessments
or the number of votes in the association appertaining
to a lot) . . . .
Zinone notes that the Declaration at issue in this case was
recorded just prior to July 1, 1999. She contends that a proper
reading of Code § 55-515.1(D) shows that the legislature
intended for the two-thirds vote requirement to be applicable to
all property owners' associations subject to the POAA as a
mandatory constraint on the ability to amend a declaration.
According to Zinone, this is so because the 1999 amendment to
Code § 55-515.1(D) applies to declarations existing at the time
of its adoption that are "silent on how [they] may be amended or
3
See 1999 Acts ch. 805.
6
upon the amendment of [the] declaration in accordance with [Code
§ 55-515.1(D)'s] requirements." Accordingly, she contends that
while the first sentence of section 17(i) of the Declaration is
in accord with the POAA, the second sentence, providing for an
unlimited power of unilateral amendment by the declarant, is
not.
Zinone further contends that her interpretation of Code
§ 55-515.1(D) is supported by Code § 55-515.2(F) and our
discussion of its application in Dogwood Valley Citizens Ass'n.
She maintains that Code § 55-515.2(F), which predates Code § 55-
515.1(D), evinces a legislative intent to limit the ability of a
declarant to unilaterally amend a declaration to the
circumstances specified in that subsection. Zinone finds
support for this contention in our statement in Dogwood Valley
Citizens Ass'n that "the POAA allows unilateral action in only
limited circumstances." 275 Va. at 204, 654 S.E.2d at 897.
Merritt and the Association, along with Home Builders
Association of Virginia, an amicus curiae appearing in support
of their position, contend that Zinone is misreading Code §§ 55-
515.1(D) and -515.2(F) as providing mandatory limitations on the
power to amend a declaration creating a property owners'
association. Rather, they maintain that the circuit court
4
Code § 55-515.2(F) was the subject of a corrective
amendment in 2001, and the text given here reflects that
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correctly interpreted these statutes as providing ancillary or
supplemental means for amending such a declaration. They assert
that nothing in the POAA prohibits a declarant from making
express provisions in a declaration for a different manner of
amending the declaration. We agree.
To determine the legislative intent underpinning the
POAA's provisions concerning the manner for amending a
declaration, it is instructive to look at the closely-related
provisions of the Condominium Act, Code §§ 55-79.39 through -
79.103, which provide for the amendment of a condominium
instrument. Code § 55-79.71(B) provides in relevant part:
the condominium instruments shall be amended only by
agreement of unit owners of units to which two-thirds
of the votes in the unit owners' association
appertain, or such larger majority as the condominium
instruments may specify, except in cases for which
this chapter provides different methods of amendment.
(Emphasis added.)
Compare this language with the provision of Code § 55-
515.1(D) that "[a] declaration may be amended by a two-thirds
vote of the owners." (Emphasis added.) It is clear that in
Code § 55-79.71(B) the legislature chose to use the mandatory
and directive term "shall," while in Code § 55-515.1(D) it used
the permissive term "may." Moreover, Code § 55-515.1(D) does
not contain any language equivalent to the further provision
correction. 2001 Acts ch. 271.
8
found in Code § 55-79.71(B) that permits a condominium
instrument to include a more restrictive limitation on the power
to amend by only a greater majority of the unit owners. Nor did
the legislature make any provision in Code § 55-515.1(D), as it
did in Code § 55-79.71(B), for "different methods of amendment"
to be provided for elsewhere in the chapter.
"We look to the plain meaning of the statutory language,
and presume that the legislature chose, with care, the words it
used when it enacted the relevant statute." Addison, 281 Va. at
208, 704 S.E.2d at 404 (citation and internal quotation marks
omitted). Moreover, when the General Assembly has used specific
language in one instance, but omits that language or uses
different language when addressing a similar subject elsewhere
in the Code, we must presume that the difference in the choice
of language was intentional. See, e.g., Hollingsworth v.
Norfolk Southern Railway, 279 Va. 360, 366-67 & n.2, 689 S.E.2d
651, 654-55 & n.2 (2010); Halifax Corp. v. First Union National
Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702 (2001).
Both the POAA and the Condominium Act were enacted to
establish the duties of developers and to protect the rights of
owners of residential property in subdivisions and condominiums
respectively. However, it is self-evident that the differences
between a subdivision consisting of individual family dwellings
and a condominium consisting of individual ownership of living
9
units in a multi-unit structure, required the legislature to
treat the two entities differently, placing greater restrictions
on the governance of the latter, and giving more flexibility to
the governance of the former. Comparing these two statutory
schemes, we conclude that the plain language of the provisions
of the POAA concerning the ability to amend a declaration are
neither mandatory nor exclusive and, thus, can be controlled by
the express provisions of a particular declaration. In this
case, the Declaration does exactly that, by providing that the
covenants set forth in the Declaration can be amended by the
Association "upon an affirmative vote of two-thirds of the
membership [thereof]" or by the Declarant "unilaterally . . .
anytime" within the time limit specified in the Declaration.
Finally, we do not agree with Zinone that our decision in
Dogwood Valley Citizens Ass'n is in conflict with this
interpretation of the POAA. The issue in Dogwood Valley
Citizens Ass'n was whether the instrument in question was a
valid declaration creating a property owners' association in
accord with the POAA. 275 Va. at 200, 654 S.E.2d at 895.
Within that context, the statement that the "POAA allows
unilateral action in only limited circumstances" merely
demonstrated the point that the instrument was not a valid
declaration because "nothing in the POAA supports the
proposition that the unilateral filing of a document without
10
notice and concurrence of the lot owners can impose upon real
property and subject owners of that property to conditions not
included in a deed of dedication or by a properly adopted
amendment to such deed." Id. at 204, 654 S.E.2d at 897. The
question whether the amendment provisions of the POAA were
mandatory and exclusive was not at issue in Dogwood Valley
Citizens Ass'n.
CONCLUSION
For these reasons, we hold that the circuit court did not
err in concluding that section 17(i) of the Lee's Crossing
Homeowners Association Declaration was not inconsistent with the
provisions of the POAA. Accordingly, the judgment of the
circuit court will be affirmed.
Affirmed.
11