Kuznicki v. Mason

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

JOSEPH M. KUZNICKI, ET AL.

v. Record No. 060878 OPINION BY JUSTICE CYNTHIA D. KINSER
January 12, 2007
ROBERT D. MASON, ET AL.

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge

In this appeal involving a condominium unit’s limited

common element, the dispositive issue concerns whether the

owners of the condominium unit had standing to institute

this suit seeking injunctive relief and damages against two

other condominium unit owners for their actions that

allegedly decreased the size of the limited common element.

We conclude that, under Code §§ 55-79.53(A) and –79.80(B),

only a condominium unit owners’ association has standing to

sue for claims related to common elements and limited

common elements.

RELEVANT FACTS AND PROCEEDINGS1

Joseph M. Kuznicki and Padmaja Polavarapu

(collectively, the Kuznickis), and Robert D. Mason and

Sherril Mason (collectively, the Masons) are owners of

“[c]ondominium units” in a “[c]ondominium” complex, as

1
We recite the facts as presented in a written
statement of facts made a part of the record pursuant to
Rule 5:11(c).
those terms are defined in Code § 55-79.41. The Masons’

unit is located on the bottom level of a building that

houses multiple condominium units. The Kuznickis’ unit is

situated within the same building, immediately above the

Masons’ unit.

The master deed governing the condominium units

designates “yard areas” as limited common elements and

states: “The owner of a Family Unit to which the yard area

attaches shall have the exclusive use of that yard area,

which use shall be to the exclusion of all other co-owners

of all other Family Units.”2 The dimensions of the

Kuznickis’ limited common element are ten feet by ten feet.

When the condominium complex was constructed, cooling

units were installed for the parties’ condominium units on

separate concrete slabs located on the ground adjacent to

the building.3 The Masons’ cooling unit measured 29 inches

by 20 inches, and both it and the Kuznickis’ cooling unit

were situated on the Kuznickis’ limited common element.

The parties agreed that the Masons have an easement over

the Kuznickis’ limited common element with regard to the

placement of and access to their cooling unit.

2
The record in this case contains only two pages of
the master deed. Thus, we do not know whether the master
deed defines the term “Family Unit.”
3
As originally constructed, the condominium units had
heating units separate from the cooling units.

2
 In October 2004, the Masons experienced mechanical

problems with both their cooling and heating units.

Consequently, the Masons replaced their cooling unit with a

“heat pump,” measuring 42 inches by 30 inches. The heat

pump is located on the spot where the original cooling unit

was situated. In order to accommodate the larger heat

pump, the workmen who installed the heat pump had to cut

down shrubbery next to the Masons’ cooling unit. The

Masons did not discuss with, or seek the approval of, the

Kuznickis or the Piedmont Council of Co-Owners (the

Council),4 before installing the heat pump or removing the

shrubbery.

At a November 2004 meeting of the Council, the

Kuznickis expressed concern about the newly installed heat

pump and the fact it was larger than the cooling unit it

replaced. The Council retroactively approved the Masons’

installation of the heat pump unit, noting that the Masons

had satisfied the Council’s criteria for approval. The

Council did, however, require the Masons to reimburse the

Council for the cost of replacing the shrubbery.

The Kuznickis subsequently filed a bill of complaint

against the Masons, seeking, among other things, removal of

4
The Council is apparently the condominium unit
owners’ association although that fact is not clear from
the record.

3
the heat pump from their limited common element and

monetary relief. In defense, the Masons filed a special

plea, a motion to dismiss, and a demurrer, asserting, in

part, that the Kuznickis lacked standing to bring the suit.

After hearing oral argument from both parties, the circuit

court granted the Masons’ special plea and motion to

dismiss, basing its decision on the holding in Virginia Hot

Springs Company v. Lowman, 126 Va. 424, 430, 101 S.E. 326,

328 (1919) (new use of an easement is permissible if it

does not place an additional burden on the servient

estate).

The Kuznickis filed a motion for rehearing, arguing

that an increase in the width of an easement is not

permissible. See Willis v. Magette, 254 Va. 198, 204, 491

S.E.2d 735, 738 (1997). After hearing additional argument,

the circuit court, in a letter opinion, concluded “the

newly installed heat pump is the same nature and character

as the original cooling unit, serving the same purpose as

the original, except adding heat.” The circuit court

further concluded “the size of the heat pump does not

require a significant appropriation of additional space and

has not placed any additional burden upon the limited

common element.” The circuit court therefore affirmed its

dismissal of the Kuznickis’ suit. The circuit court,

4
however, chose not to rule on the standing issue raised by

the Masons. This appeal followed.

ANALYSIS

On appeal, the Kuznickis assign three errors to the

circuit court’s judgment. The dispositive issue, however,

is raised in the Masons’ assignment of cross-error. They

assert that the circuit court erred by failing to rule

“that only the unit owners’ association, and not the

Kuznickis, had standing to bring the claims asserted in the

[bill of complaint].”5 Relying primarily on the provisions

of Code §§ 55-79.53(A) and –79.80(B), the Masons argue that

the General Assembly granted exclusive control over common

elements, including limited common elements, to unit

owners’ associations and that the specific language of Code

§ 55-79.53(A) confers standing only upon unit owners’

associations to sue for claims or actions regarding common

elements.

The Kuznickis disagree and assert that, because they

have the right to the exclusive use of the limited common

element, i.e., the yard area, they are asserting a claim

for a violation of an individual right as opposed to a

right held in common by all unit owners. Additionally,

5
We find no merit in the Kuznickis’ argument that the
Masons did not preserve the standing issue presented in the
assignment of cross-error.

5
they contend the Masons’ installation of the heat pump

violated their individual right not to have their limited

common element altered without their consent as required by

Code § 55-79.57(A).6 Thus, according to the Kuznickis, this

is a “proper case” which they, as “aggrieved unit owners,”

may maintain “on their own behalf” under Code § 55-

79.53(A).

“The point of standing is to ensure that the person

who asserts a position has a substantial legal right to do

so and that his rights will be affected by the disposition

of the case.” Cupp v. Board of Supervisors of Fairfax

County, 227 Va. 580, 589, 318 S.E.2d 407, 411 (1984). With

regard to the standing issue before us, we note that the

General Assembly, in 1981, amended the Condominium Act,

Code §§ 55-79.39 through –79.103 (the Act), to give

condominium unit owners’ associations “the power to act as

attorney-in-fact for the individual unit owners in

asserting or defending actions relating to the common

elements.” Chesapeake House on the Bay, Inc. v. Virginia

Nat’l Bank, 231 Va. 440, 442, 344 S.E.2d 913, 915 (1986)

(citing Code § 55-79.80(b1) (1981 Acts ch. 146)). Since

6
Although the Kuznickis assert on appeal that the
Masons’ installation of the heat pump violated the
provisions of Code § 55-79.57(A), they alleged in the bill
of complaint that the Masons’ actions violated Code § 55-
79.68.

6
the statutory scheme before that amendment did not grant

power to a unit owners’ association to maintain an action

with regard to common elements, we held in Chesapeake House

that the unit owners’ association there had no standing to

bring an action to recover damages for alleged defects in

the construction of the common elements in a condominium

project. Id. at 442, 344 S.E.2d at 915. In a subsequent

case, Rotonda Condominium Unit Owners Association v.

Rotonda Associates, 238 Va. 85, 380 S.E.2d 876 (1989), we

explained that the effect of the 1981 amendment to the Act

was “to transfer irrevocably, by operation of law, [to the

unit owners’ association] whatever rights of action the

individual unit owners might have had” concerning common

elements. Id. at 89, 380 S.E.2d at 879.

The statute at issue in both cases, Code § 55-79.80,

addressed the control of common elements by condominium

unit owners’ associations and, as relevant to the issue of

standing, currently states:

Except to the extent prohibited by the
condominium instruments, and subject to any
restrictions and limitations specified therein,
the executive organ of the unit owners’
association, if any, and if not, then the unit
owners’ association itself, shall have the
irrevocable power as attorney-in-fact on behalf
of all the unit owners and their successors in
title with respect to the common elements,
including without limitation the right, in the
name of the unit owners’ association, . . . (ii)

7
 to assert, through litigation or otherwise,
defend against, compromise, adjust, and settle
any claims or actions related to common elements
. . . .

Code § 55-79.80(B)(emphasis added).7

The Kuznickis do not dispute that a unit owners’

association has broad powers with regard to common

elements. They claim, however, that the provisions of Code

§ 55-79.80(B) divest an individual unit owner only of

standing to bring an action with regard to rights held in

common by all unit owners and that a unit owner still has

standing to maintain an action concerning an individual

right not held in common by all unit owners. In support of

their argument, the Kuznickis rely particularly on the

provisions of Code § 55-79.53(A), which state:

The declarant, every unit owner, and all
those entitled to occupy a unit shall comply with
all lawful provisions of this chapter and all
provisions of the condominium instruments. Any
lack of such compliance shall be grounds for an
action or suit to recover sums due, for damages
or injunctive relief, or for any other remedy
available at law or in equity, maintainable by
the unit owners’ association, or by its executive
organ or any managing agent on behalf of such
association, or, in any proper case, by one or
more aggrieved unit owners on their own behalf or
as a class action. A unit owners’ association
shall have standing to sue in its own name for
any claims or actions related to the common

7
The language presently designated as subsection B of
Code § 55-79.80 has not substantially changed since it
became effective on July 1, 1981. See 1981 Acts ch. 146.

8
 elements as provided in subsection B of § 55-
79.80.

Code § 55-79.53(A) (emphasis added).8

This subsection was the focus of the Court’s decision

in Frantz v. CBI Fairmac Corporation, 229 Va. 444, 331

S.E.2d 390 (1985). The issue in Frantz was whether a

condominium unit owners’ association had the authority to

compromise a claim against a condominium developer over the

objection of individual unit owners. Id. at 445, 331

S.E.2d at 392. Because the right claimed in a particular

parcel of real estate, if established, would be held in

common by all the unit owners, we concluded that the unit

owners’ association, and not the individual unit owners,

had standing both to assert and compromise the claim. Id.

at 449-51, 331 S.E.2d at 394-95. In reaching that

conclusion, we explained:

[T]he phrase, “in any proper case,” limits, rather
than expands, the instances in which actions or suits
are maintainable by unit owners pursuant to the
authority of Code § 55-79.53. Hence, while a unit
owner may assert a claim under the provisions of the
Condominium Act for the violation of some individual
right, Code § 55-79.53 contemplates that a violation
of a right held in common by all unit owners shall be
maintained by a unit owners’ association, unless the
association fails or refuses to assert the common
right.

8
The General Assembly amended Code § 55-79.53(A) in
1993 to add the last sentence in the quoted portion of
subsection (A). 1993 Acts ch. 667.

9
Id. at 450-51, 331 S.E.2d at 395 (footnote omitted).

The Kuznickis use this explanation to argue they have

standing to bring this suit against the Masons because

their claim for violation of their limited common element,

which they characterize as an individual right, falls

within the meaning of the phrase “in any proper case.” The

Kuznickis’ argument assumes that the standing given to a

condominium unit owners’ association by the General

Assembly to bring in its own name actions related to common

elements does not include actions concerning limited common

elements. This assumption, which is the foundation of

their entire argument, is flawed for several reasons.

First, the Kuznickis’ position is inconsistent with

the Act’s definitions of certain terms. The Act defines

the term “[u]nit” as “a portion of the condominium designed

and intended for individual ownership and use,” and the

term “[c]ommon elements” as “all portions of the

condominium other than the units.” Code § 55-79.41. More

importantly, the Act defines the term “[l]imited common

element” as “a portion of the common elements reserved for

the exclusive use of those entitled to the use of one or

more, but less than all, of the units.” Id. (emphasis

added).

10
 Next, the section of the master deed dealing with

limited common elements states that “[t]he owner of a

Family Unit to which the yard area attaches shall have

exclusive use of that yard area, which shall be to the

exclusion of all other co-owners of all other Family

Units.” (Emphasis added.) While this language gives the

Kuznickis exclusive use of the yard area at issue, it is

apparent from the actions of the parties in this case that

the Council retained certain control over the area

designated as the Kuznickis’ limited common element. The

Kuznickis first expressed their concerns about the

installation of the heat pump to the Council. The Masons

sought and obtained, albeit retroactively, the Council’s

approval for installing the heat pump. Indeed, the Council

noted that the Masons had satisfied the criteria for

approval.9 Additionally, the Council required the Masons to

reimburse it for replacing the shrubbery that was removed

incident to the installation of the heat pump.

Finally, our decision in Mozley v. Prestwould Board of

Directors, 264 Va. 549, 570 S.E.2d 817 (2002), demonstrates

9
As already noted, the record in this case contains
only part of the master deed. Therefore, we do not know
the type or extent of control retained by the Council over
the limited common elements. Nor do we know the Council’s
criteria for installing a heat pump in the place of a
cooling unit.

11
that the standing afforded a condominium unit owners’

association to sue for claims or actions relating to common

elements does, indeed, pertain to claims or actions

concerning limited common elements. Id. at 555, 570

S.E.2d at 821. There, we decided a condominium unit

owners’ association was entitled to an award of attorney

fees as a prevailing party in a declaratory judgment suit

brought by an individual unit owner to determine the

validity of an assessment for replacing certain windows

that the unit owners’ association contended were limited

common elements. Id. at 557, 570 S.E.2d at 822. To answer

the unit owner’s argument that the suit was not the type of

litigation for which Code § 55-79.53(A) allowed an award of

attorney fees to the prevailing party, we discussed the two

types of litigation authorized by that subsection. The

first type pertains to “actions for failure to comply with

provisions contained in relevant condominium instruments or

in the Act.” Id. at 555, 570 S.E.2d at 821. A unit

owners’ association, its executive organ or managing agent,

or “aggrieved unit owners on their own behalf or as a class

action” may bring such actions for noncompliance. Id.

The second type of litigation concerns actions related

to common elements. Id. With regard to the second type of

litigation, Code § 55-79.53(A) specifically states, “A unit

12
owners’ association shall have standing to sue in its own

name for any claims or actions related to the common

elements as provided in subsection B of § 55-79.80.”

(Emphasis added.) As already discussed, Code § 55-79.80(B)

irrevocably gives a unit owners’ association the right to

“assert, through litigation or otherwise, defend against,

compromise, adjust, and settle any claims or actions

related to common elements.” Rotonda, 238 Va. at 88, 380

S.E.2d at 878.

We then held in Mozley that the action at issue did

not fall within the first type of litigation because the

unit owner did not fail to comply with any provision of

relevant condominium instruments or the Act. 264 Va. at

555, 570 S.E.2d at 821. We concluded, however, that the

declaratory judgment suit brought by the unit owner and the

cross-bill filed by the unit owners’ association were

“representative of [the] second type of litigation

authorized by Code § 55-79.53(A).” Id. We explained:

The [unit owner’s association] was required to
defend against [the unit owner’s] bill of
complaint seeking a declaration that the
replacement windows were not “limited common
elements” as defined by the Act. The . . .
cross-bill was a separate assertion by the [unit
owners’ association], through litigation, of its
claim that those windows were, in fact, “limited
common elements.”

13
Id. at 555-56, 570 S.E.2d at 881. Implicit in our decision

was the recognition that the standing given to a

condominium unit owners’ association to bring actions

related to common elements necessarily includes actions

concerning limited common elements. Otherwise, the unit

owners’ association in Mozley would not have been entitled

to an award of attorneys’ fees because the litigation there

involved limited common elements.

In light of the language of Code §§ 55-79.53(A) and –

79.80(B) and our decision in Mozley, we emphasize two

points. First, the provisions of Code § 55-79.53(A) give

standing to a unit owner to assert “in any proper case”

only claims arising from lack of compliance with the Act or

relevant condominium instruments. Second, standing to

institute claims or actions concerning common elements,

including limited common elements, is restricted to

condominium unit owners’ associations.

Thus, we conclude that the Kuznickis did not have

standing to bring the present suit for injunctive relief

and damages for the Masons’ installation of their heat pump

on the spot where their cooling unit was previously

located. Any claim the Kuznickis may have lies against the

Council with regard to its approval of the Masons’

installation of the heat pump. Standing to raise a claim

14
about the limited common element vis-à-vis the installation

of the heat pump rests with the Council.

CONCLUSION

For these reasons, we hold that the circuit court

erred by failing to address the standing issue asserted by

the Masons. We nevertheless conclude the circuit court

properly dismissed the Kuznickis’ bill of complaint and

will therefore affirm the judgment of the circuit court.10

See State Farm Mut. Auto. Ins. Co. v. Seay, 236 Va. 275,

280 n.3, 373 S.E.2d 910, 913 n.3 (1988).

Affirmed.

10
Because the issue of standing is dispositive, we
will not address the Kuznickis’ assignments of error.

15