Present: Carrico, C.J., Compton, * Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.
SULLY STATION II
COMMUNITY ASSOCIATION, INC.
OPINION BY
v. Record No. 991078 CHIEF JUSTICE HARRY L. CARRICO
March 3, 2000
REGINALD W. DYE, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
This case involves a dispute between Sully Station II
Community Association, Inc. (the Association) and eight of its
members, Reginald W. Dye, Lory L. Cournoyer, Joseph C. Mallon,
Joyce A. Mallon, Steven M. Serio, Elizabeth A. Serio, Ellwood S.
Crick, and Catherine M. Reese (the Complainants). The dispute
concerns a policy adopted by the Association’s board of trustees
with respect to parking in a common area of Section 8 of Sully
Station II residential community in Fairfax County. From a
final decree declaring the policy void and unenforceable, we
awarded the Association this appeal. Finding that the trial
court did not err in its declaration, we will affirm.
In their bill of complaint, the Complainants prayed for
declaratory and injunctive relief establishing their right to
use the common area for parking “on the basis of equality with
other unit owners” in Section 8 of Sully Station II. Following
*
Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
February 2, 2000.
the filing of the Association’s answer and grounds of defense,
the parties entered into Joint Stipulations of Fact, which
revealed the following situation.
The Association is a non-stock corporation subject to the
provisions of the Virginia Property Owners’ Association Act,
Code §§ 55-508 through –516.2. The Association serves as a
community association for the Sully Station II residential
development. The Association’s executive body is its board of
trustees, and the Association’s governing documents include a
Declaration of Covenants, Conditions and Restrictions (the
Declaration) and a Supplementary Declaration of Covenants and
Restrictions (the Supplementary Declaration), both of which were
recorded among the land records of Fairfax County.
As the Association points out, the Declaration and the
Supplementary Declaration “collectively represent a contract
entered into by all owners” of townhouses in Section 8 of Sully
Station II. See Unit Owners Ass’n v. Gillman, 223 Va. 752, 766,
292 S.E.2d 378, 385 (1982). As with other contracts, effect
must be given to the intention of the parties. Foti v. Cook,
220 Va. 800, 805, 263 S.E.2d 430, 433 (1980). When the meaning
of language in a contract is clear and unambiguous, as it is
here, the contract needs no interpretation, and “[t]he intention
of the parties must be determined from what they actually say
and not from what it may be supposed they intended to say.”
2
Carter v. Carter, 202 Va. 892, 896, 121 S.E.2d 482, 485 (1961).
Finally, the meaning of a contract “is to be gathered from all
its associated parts assembled as the unitary expression of the
agreement of the parties.” Berry v. Klinger, 225 Va. 201, 208,
300 S.E.2d 792, 796 (1983).
The Sully Station II development is comprised of a number
of “sections” or “clusters.” The present controversy involves
Section 8 (Truitt Farm Cluster) of Sully Station II. Section 8
contains seventy-seven townhouses, thirty-eight with garages and
driveways and thirty-nine without garages or driveways. The
Complainants own townhouses in Section 8 with garages and
driveways.
Included in Section 8 is a common area with ninety-four
parking spaces. The parking lot is both “a ‘Common Area’ and a
‘Cluster Common Area’ as defined by the Declaration and
Supplementary Declaration.”
Prior to October 1, 1997, all common area parking spaces
were on a first-come, first-served basis. Effective on that
date, the board of trustees adopted a new parking policy that
assigned two reserved parking spaces in the common area to each
non-garaged townhouse. Under the new policy, no parking spaces
were assigned to garaged townhouses, and the remaining spaces
were “allotted for overflow and/or visitor parking on a first-
come, first-served basis.” As a result, seventy-eight of the
3
ninety-four parking spaces previously available in the common
area on a first-come, first-served basis were reserved for the
thirty-nine non-garaged townhouses and sixteen were left
unassigned for use on a first-come, first-served basis.
The matter was heard below on the Association’s motion for
partial summary judgment and the Complainants’ motion for
summary judgment. The debate between the parties centered upon
the question whether the Association’s parking policy
represented a licensing of a portion of the common area, as the
Complainants contended, or a rule or regulation governing the
use of the common area, as the Association contended. This
question stemmed from the following language in Article IV of
the Declaration:
Section 2. Easement of Enjoyment.
(a) Common Areas. Subject to the provisions herein,
every Owner shall have a right and easement of enjoyment in
and to the Common Area which shall be appurtenant to and
shall pass with the title to every Lot . . . .
(b) Cluster Common Areas. Subject to the provisions
herein, and in addition to the right and easement of
enjoyment in and to the Common Area provided in Article IV,
Section 2(a) above, the Owners of Lots within a Cluster
shall have a priority right and easement of enjoyment in
and to the areas designated as Cluster Common Areas . . . .
Section 3. Extent of Members’ Easement. The Members’
easement of enjoyment created hereby shall be subject to
the following:
. . . .
4
(e) The right of the Association to license portions
of the Common Area to Members on a uniform, non-
preferential basis.
(f) The right of the Association to establish rules
and regulations to regulate the use of the Common Area for
the benefit of Members.
In a memorandum filed in support of its motion for partial
summary judgment, the Association made this concession:
The Association . . . concedes that the parking policy
assigning two Common Area spaces to non-garage owners, and
no assigned Common Area spaces to garage owners, does not
treat the Owners on a ‘uniform non-preferential basis.’
Therefore, if the policy at issue represents the licensing
of a portion of the Common Area, the parking policy would
violate the Declaration . . . .
The trial court found in a letter opinion that the
Association’s parking policy resulted in “a licensing not on a
uniform basis” of portions of the common area. In a final
decree, the trial court granted the Complainants’ motion for
summary judgment and declared that the parking policy was
“invalid and unenforceable . . . as being an ultra vires act in
violation of the Declaration.”
The Association contends that the trial court erred in
finding that the parking policy in question was a license
subject to the “uniform, non-preferential” language in Article
IV, Section 3, Subsection (e), rather than a rule or regulation
within the contemplation of Subsection (f). The Association
says that the drafters of the Declaration “chose to omit any
uniformity requirement in Subsection (f),” thus evidencing “the
5
specific intent to exclude any . . . limitation on the
Association’s broad power to adopt rules and regulations.” For
this proposition, the Association cites First National Bank v.
Roy N. Ford Co., 219 Va. 942, 946, 252 S.E.2d 354, 357 (1979)
(omission of particular covenant or term from contract reduced
to writing shows intent to exclude it).
Furthermore, the Association states, “unambiguous
provisions found elsewhere in the Declaration and the
Supplementary Declaration” demonstrate the trial court’s error
in determining that “the Parking Policy was the licensing, not
the regulating, of [the] Common Area.” In this connection, the
Association cites Article III, Section 3 of the Declaration,
which deals with the Association’s board of trustees and
provides in pertinent part as follows:
(c) Powers and Duties. Without limiting the
generality thereof, the Board shall have the power and
obligation to perform the following duties:
. . . .
(2) Rule Making. To establish rules and regulations
for the use of property as provided in Articles IV and VI
. . . .
Article IV, mentioned in (2), is quoted supra. It deals
with the right of the Association to license portions of the
common area “on a uniform, non-preferential basis” and to
establish rules and regulations for the use of the common area.
6
Article VI, also mentioned in (2), provides in pertinent part as
follows:
Section 1. Protective Covenants.
. . . .
(d) Rules. From time to time the Board of Trustees
shall adopt general rules, including but not limited to
rules to regulate potential problems relating to the use of
property and the well-being of Members, such as . . .
storage and use of all vehicles . . . .
The Association also cites Article IV of the Supplementary
Declaration, which is titled “Parking” and provides as follows:
The Association shall promulgate such rules and
regulations as needed to regulate the use of any parking
areas that may be constructed or authorized on Cluster
Common Area for the benefit of all Owners, which rules and
regulations may include assignment of parking spaces.
Finally, the Association cites Article V, Section 3, of the
Supplementary Declaration, which is titled “Protective
Covenants” and provides in pertinent part as follows:
Vehicles. Use and storage of all vehicles and
recreational equipment upon the Common Area and Lots or
upon any street, public or private, adjacent thereto shall
be subject to rules promulgated by the Board of Trustees as
provided herein.
The Association says that in all the provisions of the
Declaration and Supplementary Declaration, reference to the
authority of the board of trustees with respect to parking in
common areas is “solely in the context of rules or regulations”
and not licensing. Hence, the Association concludes, the trial
court’s finding that the parking policy represented a licensing
7
of a portion of the common area “is simply contrary to the
unambiguous language in both the Declaration and Supplementary
Declaration showing that the drafters intended the assignment of
parking spaces to be considered rules and regulations.”
The Association also maintains that Virginia case law
supports the proposition that the assignment of parking spaces,
or the establishment of policies relating thereto, constitutes
the exercise of regulatory power by a community association and
not the granting of a license. Quoting Bunn v. Offutt, 216 Va.
681, 222 S.E.2d 522 (1976), the Association says a license is
“a right, given by some competent authority to do an act
which without such authority would be illegal, a tort, or
trespass.” 12 M.J., License to Real Property, § 2, p. 148.
A license is personal between the licensor and the licensee
and cannot be assigned.
Id. at 683, 222 S.E.2d at 525. 1
The Association argues that its parking policy “did not
provide ‘competent authority’ for anyone to park where it would
otherwise have been ‘illegal, a tort or a trespass’ and,
therefore, the Parking Policy is not a license.” The
Association then engages in the following hypothetical exercise:
1
The Association also cites this Court’s decision in Unit Owners
Ass’n v. Gillman, 223 Va. 752, 292 S.E.2d 378 (1982), for the
proposition that a policy with respect to the allocation of
parking within common areas is the exercise of regulatory power
by an association and not the granting of a license. However,
the case did not involve the regulation-licensing dichotomy in
any way.
8
Assume, arguendo, that a Mr. Smith owns a non-garaged
townhouse in Section 8 and that, pursuant to the Parking
Policy, the Association assigned two reserved parking
spaces in front of his house to his lot. If the policy
granted Mr. Smith a license, as the Trial Court found,
under Bunn it would have had to have been illegal, a tort
or a trespass for Mr. Smith to have parked in either of
those two parking spaces prior to the adoption of the
Parking Policy. However, Mr. Smith already had the right
to park in those parking spaces prior to the Parking Policy
because prior to any particular parking space being
assigned to a particular non-garage townhouse, the space
was available for parking for everyone on a first come,
first served basis. . . . Therefore, since his lot’s
assigned parking space had previously been open to
everyone, it certainly would not have been illegal, a tort
or a trespass for Mr. Smith to have parked there.
Undoubtedly, it would not have been illegal, a tort, or a
trespass for the hypothetical Mr. Smith to have parked in a
common area parking space in front of his lot prior to the
Association’s adoption of the parking policy. But that begs the
question. The real question is whether, prior to the adoption
of the parking policy, it would have been legal for Mr. Smith to
exclude his garaged townhouse neighbors from parking in the
spaces now assigned to him, and that question must be answered
in the negative. In other words, the parking policy was an act
in the nature of a special privilege, entitling the owners of
non-garaged townhouses to do something they would not have been
entitled to do without the policy, i.e., to exclude the owners
of garaged townhouses from the use of seventy-eight parking
spaces in the common area. That is the very essence of a
license, as the trial court indicated in its letter opinion and
9
is implicit from a reading of Bunn. 216 Va. at 683, 222 S.E.2d
at 525. And because the parking policy does not treat the
owners on a uniform, non-preferential basis, as the Association
has conceded, the policy is violative of the Declaration.
The Association cites the following out-of-state decisions
which, it says, support its argument that the adoption by an
association of a parking policy is the exercise of regulatory
power and not the granting of a license: Juno By the Sea North
Condominium Ass’n v. Manfredonia, 397 So.2d 297 (Fla. Dist. Ct.
App. 1980); Hidden Harbour Estates, Inc. v. Norman, 309 So.2d
180 (Fla. Dist. Ct. App. 1975); Alpert v. Le’Lisa Condominium,
667 A.2d 947 (Md. Ct. Spec. App. 1995); 2 Board of Managers of
Surf East Condominium v. Cohn, 90 Misc.2d 1054, 396 N.Y.S.2d 999
(N.Y. City Ct. 1977). The Complainants say these decisions are
inapposite and actually “support [their] arguments.” We find
the decisions unpersuasive.
For the reasons assigned, we will affirm the judgment of
the trial court.
Affirmed.
JUSTICE COMPTON, with whom JUSTICE LACY joins, dissenting.
2
Alpert has been overruled by the Court of Special Appeals of
Maryland. Sea Watch Stores v. Council of Unit Owners of Sea
Watch Condominium, 691 A.2d 750, 759-60 (Md. Ct. Spec. App.
1997).
10
In my opinion, the Association's parking policy is a rule
or regulation managing use of the common area, and is not a
licensing of a portion of the area violative of the
Association's governing documents.
Unambiguous language in these documents plainly indicates
the intent of the drafters to treat actions by the Board of
Trustees, in regard to parking, as rules or regulations, rather
than licenses. For example, the Supplementary Declaration at
Article IV, titled "Parking," states clearly that the
"Association shall promulgate such rules and regulations as
needed to regulate the use of any parking areas . . . which
rules and regulations may include assignment of parking spaces."
(Emphasis added.) This specific language refers to the
assignment of parking spaces as "rules and regulations," not
licenses, expressly recognizing the Board of Trustees' power to
assign parking, and is consistent with the provisions of the
governing documents as a whole.
Consequently, I would reverse the judgment below and
dismiss the bill of complaint.
11
SULLY STATION II COMMUNITY ASS'N v. Dye
Court: Supreme Court of Virginia
Date filed: 2000-03-03
Citations: 525 S.E.2d 555, 259 Va. 282
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