Background
University Village is an expandable condominium in Albemarle County, Virginia, established in 1991 under the Virginia Condominium Act. The original declaration reserved for the declarant, University Village, Inc., the right to expand the condominium within seven years. Phase I comprised 46 units and Phase II added 48 more units, all within the original expansion window. After the seven-year period expired in 1998, unit owners voted in 2003 by 94.3% approval to amend the declaration and extend the expansion period to allow a Phase III development, but no new units were ever built. Daniel Lavering purchased a unit in 2004.
In 2021, Lavering sent a letter through counsel asserting that any future expansion would require unanimous consent of all unit owners. The University Village Owners Association disagreed, maintaining that the declaration could be amended—including to extend the expansion period—by a two-thirds supermajority vote. In January 2022, the Association’s Board passed a resolution to begin the amendment process for Phase III and retained counsel to draft a proposed amendment at a projected cost of $5,000 to $7,000.
Lavering filed a declaratory judgment action in May 2022 seeking a ruling that unanimous owner consent was required for any expansion. The circuit court granted summary judgment to the Association, finding that the expansion period could be extended by a two-thirds vote under the Virginia Condominium Act. The circuit court also denied Lavering’s motion for sanctions and awarded the Association $81,223 in attorney fees as the prevailing party under Code § 55.1-1915. Lavering appealed on all three issues.
The Court’s Holding
The Court of Appeals affirmed on all grounds. On the central statutory question, the court held that the phrase “such time limit” in Code § 55.1-1916(C)(3) refers to the option-to-expand period—not the period of declarant control—and that under Code § 55.1-1934(B), an amendment extending that expansion period requires only a two-thirds vote of unit owners. The court rejected Lavering’s “last antecedent” canon argument, reasoning that Code § 55.1-1916(C)(3) uses the specific phrase “time limit” three times, with the first two uses plainly referring to the expansion period, and that a contrary reading would produce an absurd result by allowing an expired period of declarant control to be revived with fewer procedural safeguards than are required to extend an ongoing one under Code § 55.1-1943.
The court further held that amending the declaration to extend the option-to-expand period does not trigger the unanimity requirement of Code § 55.1-1934(E), which applies only when the undivided interests in common elements actually change. That change occurs only when expansion is consummated and new plats and plans are recorded—not when unit owners vote to extend the time window for a future expansion. The court noted that the Association itself conceded at oral argument that a direct vote to expand would require unanimity, but emphasized that extending the time limit for a potential expansion is a distinct act.
On the sanctions question, the court found no abuse of discretion in the circuit court’s denial. The Association’s answer had denied that it advocated for a two-thirds vote to “expand” the condominium; the Association’s actual position was that a two-thirds vote was sufficient to extend the option to expand—a legally meaningful distinction the trial court found to be made in good faith. The attorney fee award was affirmed as a consequence of the Association prevailing.
Key Takeaways
- Under Virginia Code §§ 55.1-1916(C)(3) and 55.1-1934(B), an expired or lapsing condominium expansion period may be extended by amending the declaration with approval of two-thirds of unit owners—no unanimity required for the extension itself.
- The unanimity requirement of Code § 55.1-1934(E) is triggered only by an actual change in undivided common-element interests, which occurs upon recordation of new plats and plans, not upon a vote merely extending the time window to pursue expansion.
- Extending an expired expansion period does not constitute a transfer of “special declarant rights” under Code § 55.1-1947; the circuit court’s ruling authorized a declaration amendment, not a grant of declarant status to the Association.
- A declaratory judgment action is justiciable—even before a formal vote is held—where the association has passed a board resolution, publicly stated its legal position, and retained counsel and expended funds in furtherance of the proposed amendment.
Why It Matters
This decision clarifies a previously unsettled question under the Virginia Condominium Act: the procedural threshold for reviving or extending a lapsed expansion option. Condominium associations and developers in Virginia now have clear authority to pursue expansion amendments with a two-thirds supermajority rather than unanimous consent, so long as the vote is on extending the option rather than effectuating the expansion itself. The ruling also confirms that the 2003 amendment at University Village—approved by 94.3% of owners—was legally valid, lending stability to similar past amendments statewide.
For practitioners, the opinion offers a detailed roadmap for reading the Virginia Condominium Act’s interlocking time-limit provisions in pari materia, and underscores that the last-antecedent canon yields when the statutory context and avoidance of absurd results point the other way. The decision was subject to a petition for rehearing, granted June 9, 2026, with the original May 5, 2026 opinion withdrawn and the matter reconsidered by the same panel—the June 9 order vacated the prior mandate, and the panel reissued its affirmance.