Background
Harvey and Nancy Bellomy disputed whether their property was subject to the Declaration of Covenants and Restrictions governing the Falcon Ridge common-interest community and the authority of its unit owners’ association. The declaration identified the property included within the community by reference to an attached “Schedule A-1,” but that exhibit did not appear in the record before the court. The circuit court’s ruling on the declaration’s enforceability was appealed to the Intermediate Court of Appeals.
The central legal question was whether the absence of Schedule A-1 — the exhibit purporting to provide the legally sufficient description of the real estate within the community — rendered the declaration unenforceable against the Bellomys’ property. West Virginia Code § 36B-2-105(a)(3), enacted as part of the Uniform Common Interest Ownership Act, requires every declaration to contain a legally sufficient description of the real estate included in the community.
The record also showed that some deeds within Falcon Ridge expressly referenced the declaration and subjected identified lots to its restrictions, while others did not, and that there was a longstanding course of conduct regarding development and use of property within the community.
The Court’s Holding
The majority held that the Falcon Ridge Declaration of Covenants and Restrictions is unenforceable as to the Bellomys’ property. The majority grounded its decision in the absence of Schedule A-1 and the statutory requirement under § 36B-2-105(a)(3) that a declaration contain a legally sufficient property description — a requirement the declaration, without its exhibit, failed to satisfy on the record presented.
Judge White dissented from that portion of the majority opinion. In the dissent’s view, the missing exhibit created an ambiguity about the scope of the declaration — which properties it covered — not a ground for voiding the declaration’s existence entirely. The dissent argued that the Uniform Common Interest Ownership Act does not provide that a recorded declaration becomes void whenever a required element is imperfectly satisfied, and that no West Virginia Supreme Court decision compelled that result.
The dissent would instead have remanded to the circuit court to resolve the ambiguity through examination of the declaration itself, subdivision plats, chains of title, prior conveyances, and other evidence bearing on the declarant’s intent, drawing on the interpretive principles recognized in Jubb v. Letterle, 185 W. Va. 239, 406 S.E.2d 465 (1991).
Key Takeaways
- Under West Virginia’s Uniform Common Interest Ownership Act, a declaration that fails to include or incorporate a legally sufficient property description may be held unenforceable against a property owner whose inclusion in the community cannot be established from the record.
- The absence of a referenced exhibit identifying community property is not merely a technical defect — at least under the majority’s approach, it can be fatal to enforcement of the declaration’s restrictions.
- The dissent signals a meaningful doctrinal divide: some judges would treat a missing exhibit as creating an ambiguity to be resolved through extrinsic evidence of intent, consistent with general covenant-construction principles from Jubb v. Letterle.
- Practitioners drafting or recording HOA declarations should ensure all incorporated exhibits — particularly property-description schedules — are physically attached and appear in the recorded instrument.
Why It Matters
This decision puts HOA practitioners and title attorneys in West Virginia on notice that a recorded declaration referencing a property-description exhibit that is missing from the record may be unenforceable, at least as to property owners who can credibly dispute their inclusion. The majority’s outcome-driven approach gives homeowners a potentially powerful defense against association enforcement actions where the underlying declaration is incomplete on its face.
The vigorous dissent, however, suggests the question is not fully settled. If the West Virginia Supreme Court of Appeals takes up the issue, the competing frameworks — strict statutory unenforceability versus equitable resolution of ambiguity through extrinsic evidence — will be directly before it. In the meantime, associations with declarations that reference missing or unrecorded exhibits should audit their recorded documents and consider curative steps before litigating covenant enforcement.