Present: Hassell, C.J., Koontz, Kinser, Lemons, Agee, and
Goodwyn, JJ., and Lacy, S.J.
DOGWOOD VALLEY CITIZENS ASSOCIATION, INC.
v. Record No. 070143 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
January 11, 2008
RAYMOND JAMES SHIFFLETT, JR.,
ET AL.
FROM THE CIRCUIT COURT OF GREENE COUNTY
Daniel R. Bouton, Judge
In this appeal, we consider whether the circuit court
erred in determining that Dogwood Valley Citizens Association,
Inc. (DVCA), a non-stock Virginia corporation, did not qualify
as a property owners’ association under the Property Owners’
Association Act, Code §§ 55-508 through –516.2 (the POAA).
Because we conclude that the filing of DVCA’s Articles of
Incorporation and Bylaws did not constitute a declaration
imposing on DVCA operational or maintenance responsibilities
for the common areas or roads of the development, we will
affirm the judgment of the circuit court.
BACKGROUND
We were first asked to determine whether DVCA was a
property owners’ association under the POAA in Dogwood Valley
Citizens Ass’n, Inc. v. Winkleman, 267 Va. 7, 590 S.E.2d 358
(2004). Qualification as a property owners’ association under
the POAA requires that a declaration recorded in the land
records where the development is located impose on an
association both the power to assess fees for road and common
facilities maintenance and the duty to perform such
maintenance. Anderson v. Lake Arrowhead Civic Association,
253 Va. 264, 271-72, 483 S.E.2d 209, 213 (1997). In Winkleman
we held that, although the restrictive covenants contained in
deeds of dedication filed in the land records affecting the
Dogwood Valley development conferred upon the developers and
their assignees the power to assess an annual fee for the
upkeep of the roads and common facilities, those covenants did
not require DVCA to maintain the roads or common area of the
development. 267 Va. at 13-14, 590 S.E.2d at 361.
Specifically we said the DVCA “has failed to identify any
document, recorded among the lands records . . . that
expressly requires DVCA to maintain the common areas or the
roads.” Id. Accordingly, we concluded that because such a
power and duty were not contained in a recorded declaration,
DVCA was not a property owners’ association as defined by the
POAA and did not have the authority to enforce special
assessments on landowners in the Dogwood Valley development.
Id. at 14-15, 590 S.E.2d at 361-62.
Following our decision in Winkleman, DVCA’s president
filed in the land records an affidavit and a copy of DVCA’s
Articles of Incorporation and Bylaws. The Bylaws contained a
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provision stating, “It shall be the duty of the Board of
Directors to: . . . cause the roads and common facilities to
be maintained according to the extent that the funds collected
permit.” DVCA then levied special assessments against its
members under Code § 55-514.1 When some of the landowners
refused to pay these assessments, DVCA filed warrants in debt,
claiming that the landowners were indebted to DVCA for the
special assessments. The General District Court for Greene
County denied DVCA’s claims. On appeal, the Greene County
Circuit Court held that filing the Articles of Incorporation
and ByLaws did not qualify DVCA as a property owners’
association under the POAA, and therefore, DVCA did not have
the right to levy special assessments, charge interest, charge
penalties, collect attorney’s or docketing fees, “or any other
charge other than the regular assessments set forth in the
Deeds of Dedication.” DVCA timely appealed to this Court.
1
Code § 55-514 states in relevant part:
In addition to all other assessments which are
authorized in the declaration, the board of
directors of an association shall have the
power to levy a special assessment against its
members if the purpose in so doing is found by
the board to be in the best interests of the
association and the proceeds of the assessment
are used primarily for the maintenance and
upkeep of the common area and such other areas
of association responsibility expressly
provided for in the declaration, including
capital expenditures.
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DISCUSSION
The POAA defines a property owners’ association as “an
incorporated or unincorporated entity upon which
responsibilities are imposed and to which authority is granted
in the declaration.” Code § 55-509. “Declaration” is defined
in the POAA as
any instrument, however denominated, recorded among
the land records of the county or city in which the
development or any part thereof is located, that
either (i) imposes on the association maintenance or
operational responsibilities for the common area or
(ii) creates the authority in the association to
impose on lots . . . any mandatory payment of money
in connection with the provision of maintenance
and/or services for the benefit of . . . the common
area.
Code § 55-509.
DVCA argues that the defect which prevented it from
qualifying as a property owners’ association under the POAA in
Winkleman was the failure to have a document on file in the
land records that imposed on it the responsibility of
maintaining the roads or common areas. This defect was cured,
according to DVCA, by filing the Articles of Incorporation and
Bylaws in the land records because those documents provided
the requisite duty to maintain the roads and common areas of
the development. Because those documents met the POAA’s
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definition of “declaration,” DVCA contends it now qualifies as
a property owners’ association under the POAA.2
We reject DVCA’s argument that the plain language of the
definition of “declaration” includes instruments such as
articles of incorporation and bylaws if such documents are
filed in the appropriate land records and create either
certain assessment authority or maintenance duties for the
property owners’ association. Such a literal application of
the phrase “any instrument” in the definition of “declaration”
is inconsistent with the concept of “declaration” used in
other provisions of the POAA.
The POAA applies to “developments subject to a
declaration.” Code § 55-508(A). A “[d]evelopment” is defined
by the POAA as
real property . . . subject to a declaration which
contains both lots . . . and common areas with
respect to which any person, by virtue of ownership
of a lot . . . is obligated to pay assessments
provided for in a declaration.
Code § 55-509. These two definitions along with the
definition of “declaration” reflect the intent of the General
Assembly to apply the POAA to real property subject to certain
2
Although DVCA asserted at trial that the Bylaws were a
“supplement” to the declarations, it stated in oral argument
before this Court that the Bylaws are not an amendment of or
supplement to the declaration but rather constitute a separate
and complete declaration under the definition of “declaration”
in the POAA.
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benefits and burdens that are part of the bundle of property
rights conveyed with the transfer of ownership of the
property. Such benefits and burdens are generally described
as restrictive covenants that run with the land. See Sonoma
Development, Inc. v. Miller, 258 Va. 163, 167 n.2, 515 S.E.2d
577, 579 n.2 (1999); Burton v. Chesapeake Box and Lumber
Corp., 190 Va. 755, 764, 57 S.E.2d 904, 908 (1950); Willard v.
Worsham, 76 Va. 392, 396 (1882). The POAA denotes the
instrument imposing these restrictions as a “declaration.”
Articles of incorporation and bylaws are not instruments that
apply to real property and are not instruments that subject
real property to certain burdens and benefits that pass as
part of the property rights in the conveyance of the property.
Thus, DVCA’s Articles of Incorporation and Bylaws could not be
a “declaration” for purposes of the definition of
“development.”
Other provisions of the POAA treat declarations as
instruments separate and distinct from articles of
incorporation and bylaws. Code § 55-512(A)(12) requires that
the disclosure packet given to a buyer of a lot in the
subdivision include “[a] copy of the current declaration, the
association’s articles of incorporation and bylaws, and any
rules and regulations or architectural guidelines adopted by
the association.” Code § 55-515.1 explains how to obtain the
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consent of a mortgagee “[i]n the event that any provision in
the declaration requires the written consent of a mortgagee in
order to amend the bylaws or the declaration.” (Emphasis
added.) These sections reinforce the conclusion that the
General Assembly did not consider articles of incorporation
and bylaws as synonymous with declarations. Indeed, in this
case, the Bylaws themselves refer to declarations as documents
separate from the Bylaws.
DVCA’s interpretation of “declaration” would allow a
property owners’ association to acquire the right to issue
special assessments under the POAA merely by filing in the
appropriate land records a document, regardless of its nature,
stating that the association has the authority to assess
property owners for maintenance of common areas and the
responsibility to maintain those areas. Such a change in
existing duties and responsibilities of an association and its
members could occur without any notice to or concurrence by
the property owners. Yet the POAA considers a declaration a
document that can be changed only if the lot owners have
notice and agree to the change, see Code § 55-515.1, a
condition consistent with the method of altering restrictive
covenants applicable to real property. See Hening v. Maynard,
227 Va. 113, 117, 313 S.E.2d 379, 382 (1984).
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Furthermore, the POAA allows unilateral action in only
limited circumstances. Code § 55-515.2 allows unilateral
changes to a declaration in very limited circumstances such as
correction of a scrivener’s error, a mathematical mistake, or
an inconsistency. A unilateral change cannot alter the duties
of the declarant, and if made by the association, must have a
two-thirds vote of the board of directors. Code § 55-516.2
allows the president of the association to take certain
unilateral actions in connection with condemnation
proceedings. However, nothing in the POAA supports the
proposition that the unilateral filing of a document without
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.
Finally, we have said that the responsibility for
maintenance of common areas and roads must be “imposed” on the
association; voluntary assumption of this duty is
insufficient. Lake Arrowhead, 253 Va. at 272, 483 S.E.2d at
213-14. A duty “imposed” on an organization for purposes of
qualifying as a property owners’ association under the POAA is
one that cannot be altered or eliminated simply by amending
the associations’ bylaws. While DVCA’s Bylaws recite that the
board of directors has such a duty, the assumption of this
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duty was voluntary and not required by the declarations in the
deeds of dedication of the development.
In this case the declarations applicable to the Dogwood
Valley development did not impose on DVCA the duty to maintain
the roads and common areas. Winkleman, 267 Va. at 13-14, 590
S.E.2d at 361. For the reasons stated, we hold that DVCA’s
Articles of Incorporation and Bylaws, although filed in the
land records, are not a declaration as defined by the POAA.
Accordingly, DVCA does not qualify as a property owners’
association for purposes of the POAA and we will affirm the
judgment of the trial court.
Affirmed.
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