Tel. Square v. 7205 Tel. Square LLC, 77 Va. App. 375 (April, 2023)
In Telegraph Square II, the Virginia Court of Appeals reviewed the assignment of parking spaces by the Board of Directors, and, specifically, the power of the Board to designate some spaces as “reserved common elements.”
In this case, the Declaration of the Telegraph square II Condominium addressed two types of parking at the Condominium: (i) limited common elements parking spaces, and (ii) reserved common element parking spaces. Specifically, the Declaration stated that “the Board of Directors shall have the power in its discretion from time to time to grant revocable and/or conditional licenses in designated common elements to the Association or to any unit owners and to establish a reasonable charge to such unit owners for the use and maintenance thereof.”
Telegraph Square II Condominium was developed in five phases. Originally, parking spaces in Phases II-V were designated as “limited common elements;” meanwhile, parking spaces in Phase I were available to all unit owners on a first come, first serve basis. Subsequently, in 2015, the Board of Directors reserved the parking spaces in Phase I for the exclusive use of the Phase I units on a permanent basis and without charging them a fee. 7205 Telegraph Square challenged the assignment as invalid and stopped paying condominium fees as it lost tenants due to the shortage of parking.
The Virginia Court of Appeals agreed with the trial court that the parking re-allocation impermissibly converted the Phase I parking into limited common elements for the exclusive use of Phase I unit owners. Specifically, the court ruled that the reservation of parking spaces in Phase I essentially amounted to the creation of limited common element parking spaces but was done without a proper amendment to the Declaration pursuant to Section 55.1-1916 of the Virginia Condominium Act. In reaching this conclusion, the Court pointed out that the owners were not charged a fee for the use of the parking spaces, and that the assignment was not revocable, which was required for the reservation of parking spaces under Telegraph Square’s governing documents.
Furthermore, the Court of Appeals re-iterated the principle of equal rights to use the common elements and the equitable assignment of parking spaces, previously expressed in Manchester Oaks Homeowners Ass’n, Inc. v. Batt. The Court emphasized that the Association’s Board must assign parking spaces to all unit owners equally unless the recorded governing documents expressly provide otherwise.
Burkholder v. Palisades Park Owners Ass'n, 76 Va. App. 577 (February 2023)
In Palisades Park, the owners challenged the inclusion of a fee for inspection of each property owner’s lot as a part of the annual assessment. Specifically, the Burkholders argued that Palisades Park violated the Virginia Property Owners’ Association Act, Section 55.1-1805 by imposing assessments on members to fund lot-compliance inspections of every member’s property because it was not expressly authorized by the Association’s Declaration. The Virginia Court of Appeals agreed, stating that expressly means that “the declaration must speak with unmistakable clarity” before the Board of Directors can impose assessments to fund services or improvements unrelated to the common area. Moreover, the Court ruled that this power cannot be inferred from the express general authority to impose assessments.
Following Palisades Park’s opinion, Virginia Property Owners Association Act and Virginia Condominium Act were amended to allow associations “to levy assessments, charges, or fees to pay the association’s contractual or other legal obligations in the exercise of the association’s duties and responsibilities.” Although Palisades Park was fixed via a legislative amendment, the decision illustrates the strict construction employed by Virginia courts in the interpretation of the Association’s governing documents and Board powers.
Lagett v. The Sanctuary at False Cape Condo Ass’n, Inc.,Order No. 240270 (May 2024)
In this case, the Lagetts sued the Association for a number of issues, including the reversal of the special assessment. However, the main question presented in Lagett was whether an injunction can be entered notwithstanding the pendency of a declaratory judgment claim in the lawsuit and whether the Virginia Beach Circuit Court abused its discretion by determining that Code § 8.01-189 precludes an award of injunctive relief in a declaratory judgment proceeding.
Virginia Supreme Court ruled that there could be an injunction entered notwithstanding the pendency of a declaratory judgment claim in the lawsuit, and that the Circuit Court abused its discretion in determining otherwise.
The circuit court’s order denying petitioners’ motion for an injunction is reversed, and this matter is remanded to the circuit court to consider the merits of petitioners’ request for an injunction.
Olga Tseliak, Esq., is a senior associate attorney with the law firm of Chadwick, Washington, Moriarty, Elmore & Bunn, P.C. Her practice is devoted to representing Virginia and DC community associations in such matters as corporate governance and procedure, reviewing contracts and resolving contract disputes, and covenant and rule interpretation and drafting, as well as covenant enforcement and warranty claim litigation.