Virginia Supreme Court nullifies declaration amendment on technicality
On February 12, 2016, in Tvardek v. Powhatan Village HOA, the Virginia Supreme Court struck down a leasing amendment established by a homeowners association in Virginia as a result of the failure of the recorded amendment to contain what the Court deemed compliance with the statute on amendment of the Declaration. Virginia Code Section 55-515.1 of the Property Homeowners Association Act requires the certification on the amendment to be ”signed by the principal officer of the association or by such other officer or officers as the declaration may specify that the requisite majority of the lot owners signed the amendment or ratifications thereof.” In this case the amendment signed by the principal officer stated:
“The undersigned President of the Association does hereby certify that this Amendment has been approvedby a vote of two-thirds of the Class A votes in the Association, as evidenced by the results of the meeting at which the vote was taken, such evidence on file with the Association, as required by Section 9.2 of the Declaration.”
The Supreme Court’s analysis is that the certification doesn’t actually tell you that (1) the requisite majority requirement is satisfied and (2) that the owners signed the amendment or a ratification of the amendment. The requisite majority may or may not be 2/3 of class A members and maybe it was a hand vote -- we can’t know from the wording of the amendment’s certification and this is fatal to the amendment in the view of the Court. The Court sees these requirements as absolutely essential and must be contained in the certification. This case shouldn't actually be a huge surprise to most of us familiar with the Court’s inclination not to permit restrictions on the free use of property without clear language in documents and strict compliance with the documents and the statutes. This has long been a principle of Virginia law. It is however a sharp and painful reminder to practitioners and owners alike that if they choose to amend their declaration, bylaws or rules and regulations, there must be strict compliance with the provisions of the statutes allowing them to do so. Please take note that the Condominium Act is not a subject of this case but it is certainly instructive as to amendments under both Acts.