Virginia – Steven F. Tvardek v. Powhatan Village Homeowners Association, Inc.


Tvardek v. Powhatan Village HOA

On February 12, 2016, the Virginia Supreme Court overturned a decision from the Circuit Court for the City of Williamsburg and James City County determining the one-year statute of limitations provided in Section 55-515.1 E of the Virginia Property Owners’ Association Act (“Act”) runs only from the date an amendment is “effective.”

Section 55-515.1 F of the Act defines the requirements of an “effective” amendment and the provisions of the Act must be strictly comply with those provisions.  Amendments under Section 55-515.1 F of the Act “shall become effective” only “when a copy of the
amendment is recorded together with a certification” signed by an authorized officer of the association providing that “that the requisite majority of the lot owners signed the amendment or ratifications thereof.”

The recorded certification in Powhatan Village provided only that the “Amendment has been approved by a vote of two-thirds” of the eligible members and that “evidence on file” with the HOA confirmed this fact.  The Court held that “There is a difference between adopting an amendment and signing it or some written ratification of it,” and that the Act “demands the extra precaution of requiring that the members voting in favor of an amendment verify that vote with their signatures — no doubt to discourage quarrelsome disputes between neighbors about who voted for what and when.”

Powhatan Village continues a consistent trend in the courts to apply the principle of strict construction to restrictive covenants, approaching statutory issues involving property owners’ associations in Virginia using historic tradition (including  a highly skeptical view of restrictions running with the land
that limited the free use of property from English common law) as a “jurisprudential guide.”

Powhatan Village reminds us  all that it remains critical to strictly comply with all procedural requirements of the Act and governing documents when attempting to amend the recorded declaration. While this concept is true for all common interest communities, the decision of Powhatan Village applies only to Virginia property owners’ associations – the one-year statute of limitations for amendments to condominium instruments  is triggered by recordation of an amendment, not the amendment becoming effective.

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