PRESENT: All the Justices
KENNETH M. SHEPHERD, ET AL.
OPINION BY
v. Record No. 160606 JUSTICE WILLIAM C. MIMS
April 13, 2017
RACHELLE CONDE, ET AL.
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Jeffrey W. Parker, Judge
In this appeal, we consider whether an unincorporated association is a “property owners’
association” within the meaning of the Virginia Property Owners’ Association Act, Code §§ 55-
508 to 55-516.2 (“the Act”).
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
In 1988, Sentry Realty, Inc. (“Sentry”) recorded a declaration of protective covenants and
restrictions (“the Declaration”) for Saddle Ridge Farms (“the Subdivision”). The Subdivision
comprises six lots cumulatively encompassing approximately 86.7 acres in Fauquier County.
The lots are owned as follows: Lot 1 by David W. Emerick, Sr. and Sandra E. Emerick; Lot 2 by
Rachelle Conde and Norman Conde; Lot 3 by Kenneth M. Shepherd and Patricia E. Shepherd;
Lot 4 by Anita L. Rau and Morton D. Rau; Lot 5 by John S. Schlenker, Jr. and Elizabeth M.
Schlenker; and Lot 6 by George P. Kinsey, III and Cheryl A. Kinsey. The lots are served by a
private road, North Saddle Ridge Court (“the Road”).
The Declaration created an Architectural Control Committee (“the Committee”), an
unincorporated association, to “have full authority to enforce” the Declaration. The Committee
comprises the owners of the Subdivision’s lots, with one vote for each lot.
In April 2014, a putative amendment to and restatement of the Declaration (“the First
Amendment”) was recorded in the name of all the lot owners and the Saddle Ridge Farm Home
Owners Association (“the Association”). 1 The First Amendment asserted that the Association
was “governed in all respects by the HOA Act.” The First Amendment also asserted that the
Declaration could be amended by two-thirds of the owners of the Subdivision’s lots, and that the
First Amendment had been adopted by more than that number. The First Amendment was
signed by all the lot owners except the Condes.
In June 2014, the Condes filed a complaint against the other lot owners and the
Association. They asserted that the Declaration could be amended only with the unanimous
consent of all the lot owners. They also asserted that the Association was not a party to or
created by the Declaration or the First Amendment and that it had no authority under either of
them. They further asserted that the Committee was not a valid “property owners’ association”
under the Act because the Committee did not meet the qualifications for such an association
under Dogwood Valley Citizens Ass’n. v. Winkelman (Dogwood I), 267 Va. 7, 590 S.E.2d 358
(2004), and Anderson v. Lake Arrowhead Civic Ass’n, 253 Va. 264, 483 S.E.2d 209 (1997).
They therefore sought a declaratory judgment that neither the Association nor the Committee had
any authority under the Act, and that the First Amendment was invalid.
The defendants filed a counterclaim and a first amended counterclaim in August 2014. In
October 2014, a putative second amendment and restatement (“the Second Amendment”) was
recorded in the name of the Association. The Second Amendment asserted that the Association
was created by the Declaration. 2 Like the First Amendment, the Second Amendment was signed
1
The First Amendment asserted that the Association was a Virginia non-stock
corporation. The parties now agree that no such entity exists in the records of the State
Corporation Commission, that this assertion was incorrect, and that the Association is an
unincorporated association.
2
This assertion is false. The Declaration establishes only one unincorporated association,
the Committee: “an Architectural Control Committee (hereinafter called ‘the Committee’) is
hereby established.” There is no mention of the Association in the Declaration. To the contrary,
the Declaration is clear that the Committee has “full authority” to enforce it.
2
by all the lot owners except the Condes. The Condes subsequently amended their complaint to
seek a declaratory judgment that the Second Amendment also was invalid.
The defendants filed a second amended counterclaim. They asserted that the Road was a
common area, and that the Declaration both obligated the Committee to maintain it and
authorized the Committee to collect assessments for its maintenance. They further asserted that
the Committee therefore was a “property owners’ association” within the meaning of the Act.
Repeating the Second Amendment’s false assertion, they asserted that the Declaration created
the Association. In addition, they alleged that the First Amendment and Second Amendment had
each been adopted by a two-thirds majority vote as required by the Declaration and the First
Amendment, respectively. They asserted that under the amendments, the Association was
required to maintain the Road and authorized to collect assessments for its maintenance. They
sought a declaratory judgment that the amendments had been validly adopted and that the
Declaration, First Amendment, and Second Amendment were binding on all of the lot owners.
After trial and post-trial briefing, the circuit court entered a final order ruling that the
Declaration was not a “declaration” within the meaning of Code § 55-509, that the Declaration
did not create the Association, that neither the Committee nor the Association had authority
under the Act, that all parties and their lots were bound by the Declaration, and that only the
defendants and their lots were bound by the First Amendment and Second Amendment.
We awarded the defendants this appeal on the following assignments of error 3:
The defendants have relied on this false assertion as the foundation for some of their
arguments, in both their trial pleadings and their appellate briefs. We therefore must
acknowledge it where it appears, but we will not allow it to affect our analysis.
3
We granted the defendants’ petition for appeal on four assignments of error. However,
the fourth assignment of error asserts that “[t]he trial court erred when it failed to rule on the
[defendants’] [r]equest for a [d]eclaratory [j]udgment that ‘the Declaration is binding on all lot
owners in the’” Subdivision. (Alteration omitted.)
3
1. The trial court erred in finding that the Association has no powers under the
[Act] even though the Declaration and Declaration as amended provide the
power to impose assessments for road maintenance and impose a duty to
perform such maintenance.
2. The trial court erred in holding that the Declaration did not create an
association under Virginia law.
3. The trial court erred in finding that a 100% majority is required in order to
amend the Declaration of the Association.
II. ANALYSIS
The gist of the defendants’ challenge to the circuit court’s judgment is that the court erred
by ruling that the Declaration does not create a “property owners’ association” within the
meaning of the Act. Alternatively, if the court ruled correctly on that point, they assert that it
erred by ruling that the 2014 amendments to the Declaration did not cure the defect(s) so that the
Association qualified as a “property owners’ association” within the meaning of the Act.
To evaluate whether either unincorporated association in this case (i.e., the Committee or
the Association) qualifies as a “property owners’ association” within the meaning of the Act, we
must determine first whether the Declaration conferred the necessary attributes, then whether the
amendments were validly adopted, and finally, if the amendments were valid, what effect they
had. We therefore consider the defendants’ three assignments of error in chronological order.
We review the circuit court’s interpretations of statutes and restrictive covenants de novo.
Luttrell v. Cucco, 291 Va. 308, 313, 784 S.E.2d 707, 710 (2016) (statutes); Fein v. Payandeh,
284 Va. 599, 605, 734 S.E.2d 655, 658-59 (2012) (restrictive covenants). We also are mindful
It is clear that the term “‘the Declaration’” as used in the assignment of error refers to the
declaration recorded by Sentry in 1988, exclusive of any subsequent amendments, because that is
how the defendants defined that term in both their petition for appeal and their opening brief.
However, the circuit court expressly ruled in its final order that “[a]ll of the parties’ properties
are subject to the Initial Declaration.” The assignment of error therefore asserts that the circuit
court erred by not making a ruling that it did in fact make. Consequently, we dismiss this
assignment of error as improvidently granted. See Rule 5:17(c)(1)(iii).
4
that restrictive covenants are disfavored and “construed most strictly against the grantor and
persons seeking to enforce them.” Fein, 284 Va. at 606, 734 S.E.2d at 659.
A. WHETHER THE DECLARATION CREATES
A “PROPERTY OWNERS’ ASSOCIATION”
In their second assignment of error, the defendants assert that the circuit court erred by
ruling that the Declaration did not create a “property owners’ association” within the meaning of
the Act. They make this assertion in two parts. First, they assert that the circuit court erred by
ruling that the Declaration was not a “declaration” within the meaning of Act. Second, they
assert that the Declaration creates a “property owners’ association” within the meaning of the
Act based on the statutory language of Code § 55-509. We consider each of these arguments in
turn.
1. WHETHER THE DECLARATION IS A “DECLARATION”
WITHIN THE MEANING OF THE ACT
The defendants assert that the circuit court erred by ruling that the Declaration does not
qualify as a “declaration” within the meaning of the Act. They argue that the court relied on our
decision in Dogwood Valley Citizens Ass’n v. Shifflett (Dogwood II), 275 Va. 197, 654 S.E.2d
894 (2008). They assert that we held in Dogwood II that a “declaration” qualifies under the Act
if it creates an association that is obligated both to (1) maintain roads or common area and (2)
assess fees to pay for such maintenance. They argue that this holding does not correctly reflect
the provisions of the Act because Code § 55-509 defines a “declaration” disjunctively as a
recorded instrument that “either (i) imposes on the association maintenance or other operational
responsibilities for the common area or (ii) creates the authority in the association to impose on
lots, or on the owners or occupants of such lots, or on any other entity any mandatory payment of
money.” (Emphasis added.) They argue that to the extent Dogwood II requires an instrument to
5
both impose maintenance obligations and authorize assessments to qualify as a “declaration”
within the meaning of the Act, Dogwood II contradicts the statute.
We agree with the defendants that the definition of “declaration” currently codified in
Code § 55-509 states these two elements (i.e., responsibility to maintain the common area and
authority to impose assessments) in the disjunctive. However, that was not the issue before us in
Dogwood II. Rather, the issue was whether the mere recordation of a corporation’s articles of
incorporation and bylaws transmuted those documents into a “declaration” within the meaning of
the Act, thereby transmuting the corporation into a “property owners’ association” within the
meaning of the Act. 275 Va. at 200, 202, 654 S.E.2d at 895, 896. Citing Anderson and
Dogwood I, we did state that the definition of a “property owners’ association” required a
declaration that “impose[d] on an association both the power to assess fees for road and common
facilities maintenance and the duty to perform such maintenance.” Id. at 200, 654 S.E.2d at 895
(emphases added). 4
In all three cases—Anderson, Dogwood I, and Dogwood II—our holding that Code § 55-
509 requires a “property owners’ association” to have both responsibility to maintain the
common area and authority to impose assessments is based not on the Act’s definition of
“declaration,” where the elements are disjunctive, but on its definition of “property owners’
association,” where the elements are conjunctive. We therefore reject the defendants’ argument
that our holding in Dogwood II contradicts Code § 55-509.
4
In Anderson we ruled that a civic association was not a “property owners’ association”
within the meaning of the Act because it had the power to collect maintenance fees but no duty
to maintain the common areas. 253 Va. at 272-73, 483 S.E.2d at 213-14. In Dogwood I, we
likewise ruled that a citizens’ association was not a “property owners’ association” because no
instrument recorded in the land records imposed a duty to maintain the common area. 267 Va. at
13-14, 590 S.E.2 at 361.
6
The Condes argue that the circuit court correctly ruled that the Declaration was not a
“declaration” within the meaning of the Act because it neither authorizes the collection of an
assessment nor imposes a duty to maintain the common area. On the latter point, they further
argue that the Declaration does not even designate a common area to be maintained. They assert
that the Declaration neither conveys nor leases any common area to the Committee. They also
assert that Paragraph 21 allows the lot owners to dedicate the Road to public use in the future, so
it cannot be common area. We disagree with these assertions about common area.
Code § 55-509 defines “common area” as “property within a development which is
owned, leased or required by the declaration to be maintained or operated by a property owners'
association for the use of its members and designated as common area in the declaration.”
Consequently, property need not be conveyed or leased to a property owners’ association to
qualify as “common area” so long as such an association is required to maintain or operate the
property for the use of its members, and the property is designated as common area in the
declaration. In this case, we conclude that the demarcation of the Road as an easement on the
plat incorporated into the Declaration is sufficient to fulfill the designation requirement of the
statutory definition. 5
The remaining question relating to whether there is “common area” is whether the
Declaration requires the Committee to maintain or operate the Road for the use of its members,
i.e., the owners of the six lots. That question is inextricably intertwined with the broader
5
Paragraph 21’s provision allowing future public dedication of the Road does not alter
our conclusion. The Declaration does not hover between states of existence awaiting the
occurrence or non-occurrence of a contingent, future, extrinsic event. Whatever effect
dedication of the Road may have when, if ever, it occurs, the mere possibility of dedication in the
future does not alter the present analysis of whether the Subdivision has “common area” or
whether the Declaration is a “declaration.”
7
question of whether the circuit court erred by ruling that the Declaration did not create any
“property owners’ association” within the meaning of the Act, which we consider below.
2. THE DEFINITION OF “PROPERTY OWNERS’ ASSOCIATION”
The defendants argue that the interdependence of the definitions of “declaration,”
“common area,” and “property owners’ association” in Code § 55-509 creates ambiguity because
the definition of each term incorporates both of the other two, yet taken together they are
inconsistent. In light of these inconsistencies, the defendants argue, the disjunctive use of the
elements in the definition of “declaration” should control the definition of “property owners’
association.” We disagree.
“[A] statute is ambiguous when its language is capable of more senses than one, difficult
to comprehend or distinguish, of doubtful import, of doubtful or uncertain nature, of doubtful
purport, open to various interpretations, or wanting clearness of definiteness, particularly where
its words have either no definite sense or else a double one.” Newberry Station Homeowners
Ass'n v. Board of Supervisors, 285 Va. 604, 614, 740 S.E.2d 548, 553 (2013) (internal quotation
marks and citation omitted). Assuming for the sake of argument that Code § 55-509 is
ambiguous as the defendants assert, we may resolve such ambiguity by consulting legislative
history. JSR Mech., Inc. v. Aireco Supply, Inc., 291 Va. 377, 385, 786 S.E.2d 144, 147 (2016).
The General Assembly enacted the Act in 1989. 1989 Acts ch. 679. In the original
enactment, Code § 55-509 defined a “declaration” in relevant part 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
imposes on the association maintenance or operational responsibilities for the
common area and creates the authority in the association to impose on lots, or on
the owners or occupants of such lots, or on any other entity any mandatory
payment of money in connection with the provision of maintenance or services, or
both, for the benefit of some or all of the lots, the owners or occupants of the lots,
or the common area.”
8
Id. (emphasis added.) It defined “property owners’ association” simply as “an incorporated or
unincorporated entity that is referred to in the declaration,” excluding certain associations
defined by other statutes not relevant here. Id.
The original definition of a “declaration” in the 1989 enactment created a manifest
ambiguity by pairing “either” with “and,” rather than with “or.” The General Assembly
eliminated this ambiguity in 1991 by amending and reenacting Code § 55-509 to replace the
“and” with “or,” along with other changes not relevant here. 1991 Acts ch. 667. At the same
time and in the same enactment, the General Assembly also amended the definition of “property
owners’ association” to mean “an incorporated or unincorporated entity upon which
responsibilities are imposed and to which authority is granted in the declaration.” Id. (emphasis
added). Thus, at the same time and in the same enactment, the General Assembly affirmatively
acted both to make the elements clearly disjunctive in the definition of “declaration” and clearly
conjunctive in the definition of “property owners’ association.”
“When interpreting and applying a statute, we assume that the General Assembly chose,
with care, the words it used in enacting the statute, and we are bound by those words.” Kiser v.
A.W. Chesterton Co., 285 Va. 12, 19 n.2, 736 S.E.2d 910, 915 n.2 (2013) (internal quotation
marks and citation omitted). This principle cannot be more true than here, where the legislature
has amended the same code section in two places at the same time with divergent effects. We
therefore must assume that the General Assembly intended the elements to be disjunctive in the
statutory definition of “declaration” but conjunctive in the definition of “property owners’
association.” Accordingly, we must reject the defendants’ argument that the disjunctive use in
the definition of “declaration” controls the definition of “property owners’ association.”
The defendants also assert that Code § 55-509 defines a “property owners’ association”
as an entity “upon which responsibilities are imposed and to which authority is granted in the
9
declaration.” They argue that the Declaration created an unincorporated association comprising
the Subdivision’s lot owners, and that the Declaration imposed responsibilities and granted
authority. 6
As noted above, Code § 55-509 requires a “declaration” to “either (i) impose[] on the
association maintenance or operational responsibilities for the common area or (ii) create[] the
authority in the association to impose . . . any mandatory payment of money in connection with
the provision of maintenance and/or services.” A declaration must both impose responsibilities
and authorize assessments before an entity qualifies as a “property owners’ association” as
defined in that code section. These elements must be fulfilled by language “‘expressly stated’”
in the Declaration. Dogwood I, 267 Va. at 13, 590 S.E.2d at 361 (quoting Anderson, 253 Va. at
272, 483 S.E.2d at 213).
Paragraph 1 of the Declaration imposes on the Committee the duty to enforce the
Declaration. Paragraph 22 requires the Road to be maintained, and requires the lot owners to pay
a pro-rata share of the cost of such maintenance. Taking these provisions together, we conclude
that they expressly impose upon the Committee a duty to maintain the Road and authorize it to
impose a variable assessment of one-sixth of the cost of such maintenance on the owners of each
respective lot. Consequently, the Declaration fulfills the qualifications of a “declaration” and the
Committee fulfills the qualifications of a “property owners’ association” within the meaning of
the Act. 7 Accordingly, the circuit court’s rulings to the contrary were erroneous and must be
reversed.
6
In their opening brief, the defendants imply that the Association is the unincorporated
association created by the Declaration. However, as noted above, there is no mention of the
Association in the Declaration. Consequently, our discussion of the unincorporated association
created by the Declaration is limited exclusively to the Committee.
7
Accordingly, the Condes’ other arguments about “common area” being without merit as
discussed above, the Road fulfills the requirements to qualify as a “common area” under the Act.
10
However, this conclusion does not end our review because the defendants assert not only
that the Committee is a “property owners’ association” within the meaning of the Act, but that
the Association is as well. Because, as noted above, the Declaration neither imposes
responsibility on the Association nor authorizes it to impose assessments, the Declaration does
not qualify the Association to be a “property owners’ association.” We therefore must consider
whether the amendments were validly adopted and whether they succeeded where the
Declaration did not.
B. WHETHER THE AMENDMENTS MAY BE
ADOPTED BY A TWO-THIRDS MAJORITY VOTE
In their third assignment of error, the defendants assert that the circuit court erred by
ruling that the First Amendment and Second Amendment applied only to them, to the exclusion
of the Condes, because the amendments were not adopted by unanimous consent. They argue
that, while the general rule is that a restrictive covenant cannot be modified except by consent of
all the affected lot owners, this Court recognized in Barris v. Keswick Homes, LLC, 268 Va. 67,
71, 597 S.E.2d 54, 57 (2004) that a restrictive covenant may itself provide for modification by a
lesser number. They assert that Paragraph 27 of the Declaration sets the threshold at two-thirds
of the lot owners. It provides that
These covenants are to run with the land and shall be binding on all parties and all
persons claiming under them and must be in full force and effect for a period of
not less than twenty-five (25) years from date of recordation and shall
automatically be extended for successive twenty-five (25) year periods. Changes
cannot be made unless passed by a vote of two-thirds of the then record owners of
the lots in the subdivision.
The same provision appears as Paragraph 26 of the First Amendment.
The defendants argue that the plain meaning of this language permits the lot owners to
amend any part of the Declaration, and subsequently the First Amendment, by a two-thirds
11
majority vote. Each of the amendments was approved by all of the lot owners except the
Condes, for a five-sixths majority. Thus, they continue, the First Amendment and Second
Amendment were validly adopted according to the requirements set forth in the Declaration and
First Amendment, respectively, and are binding on all the lot owners.
The Condes argue that the plain meaning of this language permits a two-thirds majority
vote to modify only (1) the original duration of the Declaration, (2) the fact that it automatically
renews, or (3) the duration of the automatic renewal periods. Consequently, they continue, the
general, unanimous-consent requirement applies to modifications of any other provisions of the
Declaration unless there is other language permitting them to be modified by a lesser number.
The Condes assert that the only other provision that mentions modification of the Declaration is
Paragraph 24, which permits Sentry, as the declarant, “or its designee . . . to modify any of the
provisions of these covenants to alleviate hardship.” Paragraph 24 does not apply here, the
Condes argue, so the First Amendment and Second Amendment are invalid because they were
not adopted by unanimous consent.
As noted above, restrictive covenants are disfavored and ambiguities are construed
against the party seeking to enforce the covenant. Barris, 268 Va. at 71, 597 S.E.2d at 57.
However, we “will enforce restrictive covenants where the intention of the parties is clear and
the restrictions are reasonable.” Fein, 284 Va. at 606, 734 S.E.2d 659. We also will enforce
them “if it is apparent from a reading of the whole instrument that the restrictions carry a certain
meaning by definite and necessary implication.” Scott v. Walker, 274 Va. 209, 213, 645 S.E.2d
278, 280 (2007).
The parties agree that Paragraph 27 permits certain changes to be made by a two-thirds
majority vote. They dispute only what changes the paragraph applies to. The paragraph does not
expressly define its scope. However, we do not believe that this omission creates an ambiguity.
12
Paragraph 27 comprises two sentences. The first begins with “These Covenants,”
meaning the Declaration, and that is the subject of every verb in the sentence: the Declaration
“[is] to run with the land;” the Declaration “shall be binding;” the Declaration “must be in full
force . . . for twenty-five (25) years;” the Declaration “shall automatically be extended for
successive twenty-five (25) year periods.” We therefore conclude that the Declaration is the
focus of the paragraph and that the “changes” mentioned in the second sentence are changes to
the Declaration in its entirety, not changes only to those attributes of the Declaration set forth in
the first sentence, such as the twenty-five-year periods of duration or the automatic renewal.
Accordingly, the circuit court erred by ruling that the First Amendment and Second
Amendment were binding only on the defendants, to the exclusion of the Condes. Paragraph 27
of the Declaration and the identical language in Paragraph 26 of the First Amendment allowed
the lot owners to adopt the First Amendment and Second Amendment, respectively, by a two-
thirds majority vote, and such amendments are binding on all the lot owners.
C. WHETHER THE ASSOCIATION IS A “PROPERTY OWNERS’ ASSOCIATION”
WITHIN THE MEANING OF THE ACT
In their first assignment of error, the defendants assert that “[t]he trial court erred in
finding that the Association has no powers under the [Act] even though the Declaration and
Declaration as amended provide the power to impose assessments for road maintenance and
impose a duty to perform such maintenance.” (Emphasis added.) Unlike the second assignment
of error, discussed above, this assignment of error does not assert that the circuit court erred by
failing to rule that the Declaration created any unincorporated association that qualified as a
“property owners’ association” within the meaning of the Act. Rather, it asserts that the circuit
court erred by ruling that the Association specifically is not a “property owners’ association”
within the meaning of the Act.
13
The defendants argue that evidence in the record establishes that the Association has paid
to maintain the Road and has imposed assessments to collect the costs of such maintenance.
However, that is not the standard to qualify as a “property owners’ association” within the
meaning of the Act. To the contrary, as discussed at length above in our analysis of the second
assignment of error, the standard is that the declaration must impose a duty to maintain common
area and authorize the imposition of assessments for the costs of such maintenance. Our review
of the Second Amendment establishes that the Association does not fulfill either requirement. 8
Like Paragraph 2 of the Declaration, Paragraph 1 of the Second Amendment provides
that each lot owner is automatically a member of the Committee. Cf. Code § 55-509 (defining a
“development” as, in relevant part, “real property . . . subject to a declaration . . . with respect to
which any person, by virtue of ownership of a lot, is a member of” a property owners’
association). Nothing in the Second Amendment provides who the members of the Association
are or how they become members. The Second Amendment certainly does not provide that one
becomes a member of the Association, rather than or in addition to the Committee, by virtue of
owning a lot within the Subdivision.
More importantly, unlike Paragraph 1 of the Declaration, no provision in the Second
Amendment confers a general duty on any entity to enforce it. However, all the powers
specifically conferred on the Committee by Paragraphs 3, 4, 5, 6, 7, 8, 11, 15, 18, and 19 of the
Declaration (relating to the approval of signs, commercial activities, parking, and placing or
altering improvements including structures, fences, swimming pools, and tennis courts) are
replicated in Paragraphs 2, 3, 4, 5, 6, 7, 10, 14, 16, and 17 of the Second Amendment as powers
8
As noted above, the Second Amendment asserts that the Association was created by the
Declaration. We have refuted that assertion because the Declaration makes no mention of the
Association at all.
14
specifically conferred (again) on the Committee. Paragraph 24 of the Declaration has been
modified and appears in Paragraph 22 of the Second Amendment, now empowering the
Committee rather than Sentry (or the Association) “to modify any of the provisions of these
covenants to alleviate hardship.” Paragraph 12 of the Second Amendment includes a power not
conferred on the Committee in the Declaration, that of approving animals other than horses,
cattle, or household pets, but again confers this power on the Committee, not the Association.
Thus, where the Second Amendment confers power, it confers it upon the Committee rather than
the Association.
This pattern persists with regard to the duty to maintain common area and the authority to
impose assessments. Paragraph 21 of the Second Amendment replaces Paragraph 22 of the
Declaration by requiring that the Road be maintained and that the lot owners pay a pro-rata share
of the cost of such maintenance. However, it provides that “each [o]wner shall pay to such
[p]erson at such place as the Committee may direct that installment of the [a]ssessment which is
due during such period. The Committee shall establish one or more payment periods and the due
dates for each such payment in each fiscal year.” (Emphases added.) While Paragraph 22 of the
Second Amendment provides that “[e]ach [o]wner of a [l]ot shall pay to the Association all
[a]ssessments and other charges as determined by the Committee and assessed by the
Association pursuant to the provisions of this Declaration” (emphasis added), no provision
empowers the Association to make such an assessment. 9 Under Paragraph 21, the assessment for
9
Although Paragraph 27 makes any lot owner liable to the Association for its costs, and
provides that such costs “may be assessed against” the lot owner, the express language of that
provision only makes the assessment discretionary. It does not indicate what entity determines
whether or how much of such costs actually will be imposed as an assessment. In any event, the
costs which could, theoretically, be imposed as an assessment under this paragraph relate to
“expense of all upkeep rendered necessary by such [o]wner’s act or omission regardless of
neglect or liability, but only to the extent that such expense is not covered by the proceeds of
insurance carried by the Association.” Consequently, from this context, the costs that may be
15
maintenance is made by the Committee, not the Association. Under Paragraph 21, the
Committee, not the Association, determines what the assessment for maintenance is, when it is
due, and to whom it is paid. This is underscored by Paragraph 23, which provides that “[t]he
Committee may file or record” a lien on the lot of any owner who fails to pay his or her
assessment, and Paragraph 30, which provides that if any lot owner is more than thirty days late
paying his or her assessment, “interest from the due date at a rate of six percent per annum may
be imposed in the discretion of the Committee.”
Turning to other provisions dealing with assessments, Paragraph 32 authorizes the
Committee to “impose charges” upon an owner for violating the Second Amendment, and that
such “[c]harges are assessments and shall be collectible as such and shall also constitute a lien
against a lot.” Paragraph 33 provides that “[t]he Committee, before imposing any charge shall
afford” the affected lot owner “the due process rights set forth in Section 55-513” of the Act.
In fact, all references in the Second Amendment to any entity having power or
responsibility under the Act, like Paragraph 33, refer to the Committee, not the Association.
Paragraph 23 empowers the Committee to record a lien for unpaid assessments “to confirm the
establishment and priority of such lien by Section 55-516” of the Act. Paragraphs 25 and 37
provide that “[t]he Committee is authorized to adopt” measures to enforce the Second
Amendment as permitted by the Act.
In short, nothing in the Second Amendment either imposes upon the Association a duty
to maintain the Road or authorizes it to impose assessments for the costs of such maintenance.
The Association therefore does not fulfill either of the requirements to qualify as a “property
assessed under Paragraph 27 appear to relate to repairs necessitated by damages caused by a lot
owner, not maintenance.
16
owners’ association” within the meaning of the Act. Accordingly, the circuit court did not err by
ruling to that effect and we will affirm this portion of its judgment.
III. CONCLUSION
For the reasons set forth above, we will reverse the judgment of the circuit court. Noting
that the final order of the circuit court directed the clerk of that court to record the order among
the land records of Fauquier County, we will remand the case for further proceedings consistent
with this opinion.
Affirmed in part,
reversed in part,
and remanded.
17
Shepherd v. Conde
Court: Supreme Court of Virginia
Date filed: 2017-04-13
Citations: 797 S.E.2d 750, 293 Va. 274, 2017 WL 1366944, 2017 Va. LEXIS 56, 2017 Va. Cir. LEXIS 60
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