Tvardek v. Powhatan Vill. Homeowners Ass'n, Inc., Record No. 150456.

• Decision Date: 12 February 2016
• Docket Number: Record No. 150456.
• Parties: Steven F. TVARDEK, Jr., et al. v. POWHATAN VILLAGE HOMEOWNERS ASSOCIATION, INC.
• Court: Virginia Supreme Court

291 Va. 269

784 S.E.2d 280

Steven F. TVARDEK, Jr., et al.

v.POWHATAN VILLAGE HOMEOWNERS ASSOCIATION, INC.

Record No. 150456.

Supreme Court of Virginia.

Feb. 12, 2016.

James J. Knicely(Knicely Law Firm, on briefs), Williamsburg, for appellants.

Barry Dorans(Wolcott Rivers Gates, on brief), Virginia Beach, for appellee.

Amicus Curiae: Virginia Property Rights Coalition (Stephen J. Clarke; Norfolk, Joshua E. Baker; Waldo & Lyle, on brief), in support of appellants.

Amicus Curiae: Williamsburg Area Association of Realtors, Inc. (S.M. Franck; Andrew M. Franck; Williamsburg, Geddy, Harris, Franck & Hickman, on brief) in support of appellants.

Present: All the Justices.

Opinion by Justice D. ARTHUR KELSEY.

The circuit court in this case granted a special plea in bar dismissing, on statute of limitations grounds, a declaratory judgment action filed by Steven F. Tvardek and Marta P. Tvardek against their homeowners' association. Because the court erred in doing so, we reverse the dismissal order and the circuit court's ancillary award of attorney fees to the defendant.

I.

In 2013, the Tvardeks filed a declaratory judgment complaint against their homeowners' association, Powhatan Village Homeowners Association, Inc. (the "HOA"). They challenged the validity of a 2008 amendment to the Powhatan Village Declaration of Protective Covenants and Restrictions (the "2008 Amendment") on the basis that it unlawfully deprived them of a preexisting right to rent their home, which they purchased in 2006.

After the Tvardeks filed an amended complaint amplifying their claim, the HOA filed a special plea in bar asserting that the case should be dismissed as untimely under the one-year statute of limitations prescribed by Code § 55–515.1(E). The Tvardeks responded with a motion for partial summary judgment claiming that the statute of limitations was inapplicable because the 2008 Amendment never became "effective" under the Virginia Property Owners' Association Act, Code § 55–509 et seq. , and specifically pursuant to Code § 55–515.1(F), which is a prerequisite for the running of the one-year limitations period in Code § 55–515.1(E). Without taking evidence, the circuit court reviewed the pleadings, heard arguments of counsel, and entered an order granting the special plea in bar asserting the statute of limitations defense. The court later entered an order granting "prevailing party" attorney fees, in the amount of $12,237.50, to the HOA. See Code § 55–515(A); J.A. at 219.

The debate over the statute of limitations turned on a single uncontested fact: the text of a certification attached to the 2008 Amendment, which was recorded in the land records of the clerk of the circuit court. The certification stated:

CERTIFICATION REQUIRED BY VIRGINIA CODE § 55–515.1.F

The undersigned President of the Association does hereby certify that this Amendment has been approved by 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.

EXECUTED on the date first written above by the duly authorized officer of the Association.

POWHATAN VILLAGE

HOMEOWNERS ASSOCIATION, INC., a Virginia Nonstock Corporation

By: /s/Barbara G. Moody

Barbara Moody, President

This certification was important because the one-year statute of limitations prescribed by Code § 55–515.1(E)only bars actions challenging the validity of amendments when the action is "brought more than one year after the amendment is effective." The next subsection of the statute defines the events that make an amendment effective under the Act:

Agreement of the required majority of lot owners to any amendment of the declaration shall be evidenced by their execution of the amendment, or ratifications thereof, and the same shall become effective when a copy of the amendment is recorded together with a certification, 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.

Code § 55–515.1(F)(emphasis added).

II.

On appeal, the Tvardeks argue that the HOA filed a certification that did not comply with Code § 55–515.1(F), thus precluding the 2008 Amendment from becoming "effective" for purposes of triggering the one-year limitations period in Code § 55–515.1(E). The HOA disagrees, arguing that the limitations period should begin when the amendment is recorded and that, at any rate, the certification was sufficient to be "effective" under Code § 55–515.1(F). We agree with the Tvardeks.

A.

"The common law of England was brought to Virginia by our ancestors" in large part "to settle the rights of property." Briggs v. Commonwealth, 82 Va. 554, 557 (1886).¹ At that time, English common law had developed a highly skeptical view of restrictions running with the land that limited the free use of property. "Historically, the strict-construction doctrine was part of the arsenal of restrictive doctrines courts developed to guard against the dangers imposed by servitudes." Restatement (Third) of Property: Servitudes § 4.1cmt. a (2000); cf. id. § 1.3(1) ("A covenant is a servitude if either the benefit or the burden runs with land."); id. at intro. note (treating easements, covenants, and servitudes as part of "an integrated body of doctrine").

English common law recognized very few restrictive covenants running with the land. Those traditionally receiving judicial approval appeared to be limited to easements appurtenant "created to protect the flow of air, light, and artificial streams of water, and to ensure the subjacent and lateral support of buildings or land." United States v. Blackman, 270 Va. 68, 77, 613 S.E.2d 442, 446 (2005); see also Tardy v. Creasy, 81 Va. 553, 557 (1886). Over a century ago, we noted that "attempts have been made to establish other easements, which the [historic common] law does not recognize, and to annex them to land; but the law will not permit a land-owner to create easements of every novel character and attach them to the soil." Tardy, 81 Va. at 557. Since then, in keeping with our common-law traditions, Virginia courts have consistently applied the principle of strict construction to restrictive covenants.²

A restrictive covenant running with the land that is imposed on a landowner solely by virtue of an agreement entered into by other landowners who are outside the chain of privity would have been unheard of under English common law. See generally 7 William Holdsworth, A History of English Law 287 (1925) ( "Whether or not the burden of other covenants would run with the land, and whether or not the assignee of the land could be sued by writ of covenant, seem to have been matters upon which there is little or no mediaeval authority."). Privity has long been considered an essential feature of any enforceable restrictive covenant. Bally v. Wells (1769) 95 Eng. Rep. 913, 915; 3 Wils. 26, 29("There must always be a privity between the plaintiff and defendant to make the defendant liable to an action of covenant."). Many of our cases have recognized this common-law requirement. See, e.g., Beeren & Barry Invs., LLC v. AHC, Inc., 277 Va. 32, 37–38, 671 S.E.2d 147, 150 (2009); Waynesboro Village, L.L.C. v. BMC Props., 255 Va. 75, 81, 496 S.E.2d 64, 68 (1998); Sloan v. Johnson, 254 Va. 271, 276, 491 S.E.2d 725, 728 (1997).³ We thus approach the statutory issue in this case with this historic tradition as our jurisprudential guide.⁴

B.

The Virginia Property Owners' Association Act, Code §§ 55–508to 55–516.2, expanded the concept of privity considerably beyond common-law limits. In general terms, the Act permits the creation of a restrictive covenant running with the land and enforceable against subsequent owners of the parcels covered by the declaration, whether or not they consent, so long as the association follows the statutorily prescribed procedures governing the association's declaration and amendments to it. Code § 55–515.1lays out a detailed process necessary for the effective adoption of an amendment to an association's declaration.⁵ The amendment must be agreed to "by a two-thirds vote of the owners." Code § 55–515.1(D). Under subsection F, an amendment agreed to by a two-thirds vote "shall become effective" only "when a copy of the amendment is recorded together with a certification" signed by an authorized officer of the association. The certification must state "that the requisite majority of the lot owners signed the amendment or ratifications thereof." Code § 55–515.1(F)(emphasis added). For statute of limitations purposes, subsection E closes the loop by providing that the one-year limitations period runs from the date the amendment becomes "effective."⁶

In this case, the certification stated 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. J.A. at 109 (emphasis added). The HOA contends that this language adequately satisfied the definition of "effective" used in Code § 55–515.1(F). The circuit court agreed, concluding that the text of the certification, while not technically compliant, was nonetheless sufficient to trigger the one-year limitations period under Code § 55–515.1(E). We cannot concur with the circuit court's interpretation of the statute.

Adhering closely to statutory texts, Virginia courts "presume that the legislature chose, with care, the words it used when it enacted the relevant statute." Zinone v. Lee's Crossing Homeowners Ass'n, 282 Va. 330, 337, 714 S.E.2d 922, 925 (2011). We believe it to be "our duty to interpret the statute as written and when this is done our responsibility ceases." City of Lynchburg v. Suttenfield, 177 Va. 212, 221, 13 S.E.2d 323, 326 (1941).⁷ The one canon of construction that precedes all others is that "[w]e presume that the...