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Category: Statutory Law

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Details

Category: Statutory Law

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The Virginia Property Owners' Association Act (VPOAA), passed in 1989, was an effort by the Virginia Legislature to regulate property owners' association that have the power to make assessments and legally enforce those assessments. The statutory language in the bill, as passed, is somewhat ambiguous. The Supreme Court of Virginia (SCOV), in rulings in three different cases, has used what is known as "statutory construction" to clarify what the intent of the legislation is. The rules of the Supreme Court only allow statutory construction when the language of the bill is not clear. In these three cases, SCOV ruled that the declaration(s) of a subdivision forming an association must give both the authority to make assessments and impose the duty on the association to maintain some common ground. The Merifield Acres, Inc covenants, also known as the Wilson covenants, fail to require MALA to perform any duty. The requirements established by the the Act also require that common area(s) be identified in the declaration and by the term common area. The MALA covenants also fail this particular requirement, as common areas were only speculative at the time the declarations were written. As such, the declarations are only speculative about possible future common areas, and none are specifically identified.

The Subdivided Land Sales Act of 1978 (SLSA): This legislation was passed to protect consumers from wide-ranging fraud concurring during sales of recreational lots. The seller would issue what is called a "land sales installment agreement" where the deed was held in the name of the seller or some other person or organization, with the presumed intent of transferring title to the purchaser when the payments were completed. Often, this transfer would never happen, and if a purchaser missed even one payment, the seller would invalidate the contract, keep all of the funds paid, and keep the land as well. Frequently, they would mortgage an entire subdivision that had been so sold. They could do this since they still held legal title to all of the property. As noted in High Knob v. Douglas, SCOV, only subdivisions where land sales were made through such contracts qualify for the lien rights specified in the SLSA. Merifield Acres property was never sold under that type of contract, so the SLSA does not apply to our subdivision, as claimed by attorney Sottolano in the latest letter from CWMEB.

Lien Law in Virginia (and most state) is a combination of statutory law, common law, and case law. It is therefore difficult to track down and quote particular rules that may apply. Common law applies unless subrogated by statutory law. VPOAA subrogates common law in that it gives an association a statutory path to record a lien and enforce it, outside of the court system (unless challenged from within the court system). This statute gives a qualifying association an expedited process to record and enforce liens that not afforded other associations. The statutory requirements for such a lien must strictly be met, and one of those requirements is that the association meets the requirements of the VPOAA itself. Accordingly, there is no mechanism for MALA to record and enforce any statutory lien (also known as an MOL). Note further that all common law liens must be perfected through the court system, by either a warrant-in-debt or a common lawsuit. Note that MALA could record a lis pendens in the land records, which is a notice of intent to sue. This would have about the same practical effect on the subject land as a Memorandum of Lien, but anyone recording a lis pendens must actually intend to bring suit. Otherwise, filing such a notice would not be legal.