The requestor in this matter's client, a property owners association (POA), denied a landowner's application to build a 7-11 and a National Tire & Battery on the premises pursuant to authority in the POA's declaration and the development guidelines referenced in the declaration. The landowner sued claiming the POA's declaration does not allow the association to restrict development on the basis of use and that the development guidelines were not enforceable because they were not recorded. The POA prevailed in the trial court, but the landowner has appealed to the Court of Appeals, which is a statewide appellate court. The requestor included with this submission the briefing by the other side. The requestor believes that they have strong arguments that the Association acted within its authority and that the development guidelines are enforceable. But the requestor would like the support of CAI to bolster their position and speak to how enforcing development guidelines referenced in the recorded declaration not recorded in the land records themselves is commonplace in the industry and that following appellant's argument would create significant issues.
It is important that the Court of Appeals not render a decision without realizing the impact that it could have on community associations, residential and commercial, statewide. For example, if the Court of Appeals rendered a ruling that nonrecorded association documents were not enforceable, that could create a significant problem across the Commonwealth of Virginia for associations. The requestor believes that CAI, speaking on behalf of its members, can articulate that much more effectively than we can as counsel for a particular party.
Amicus Virginia
Court: Court of Appeals of Virginia
Topic: Recordation of Declarations
Brief Author: Todd Sinkins, Esq., CCAL of Rees Broome, Virginia.
Filed: September 11, 2023
CAI Amicus Review Panel:
Mr. Robert Diamond, Esq., CCAL, Co-Chair of Amicus Committee (VA)
Mr. Edmund Allcock, Esq., CCAL, Co-Chair of Amicus Committee (MA)
Mr. Augustus Shaw, Esq., CCAL, CCAL BOG Liaison (AZ)
Mr. Gary Daddario, Esq., CCAL (NH)
Ms. Noelle Hicks, Esq. (TX)
Mr. Todd Skowronski, Esq. (MI)
Mr. Brian Fellner, Esq. (MD)