Background
The Bellomys own property within or adjacent to Falcon Ridge, a common-interest community governed by a recorded Declaration of Covenants and Restrictions administered by Falcon Ridge Unit Owners’ Association. The declaration purports to identify the real estate subject to its restrictions by reference to an attached “Schedule A-1,” but that exhibit does not appear in the appellate record. West Virginia Code § 36B-2-105(a)(3), part of the state’s enactment of the Uniform Common Interest Ownership Act, requires every declaration to contain a legally sufficient description of the real estate included within the community.
The record reflects that some deeds within Falcon Ridge expressly referenced the declaration and subjected identified lots to its restrictions, while others did not. There was also evidence of a longstanding course of conduct regarding the development and use of property within the community. The Bellomys contested the association’s ability to enforce the declaration’s covenants against their property, and the matter came before the Intermediate Court of Appeals on review of a circuit court decision.
The Court’s Holding
The majority of the Intermediate Court of Appeals held that the Falcon Ridge Declaration of Covenants and Restrictions is unenforceable as to the Bellomys’ property, apparently concluding that the absence of Schedule A-1 rendered the declaration’s property description statutorily deficient under § 36B-2-105(a)(3). Note: only the dissenting opinion is reproduced in the text provided; the majority’s full reasoning is known only as described by the dissent.
Judge White dissented from that portion of the ruling. The dissent agreed that the missing exhibit creates a genuine problem, but argued that the Uniform Common Interest Ownership Act does not expressly void a declaration for an imperfect statutory compliance. In the dissent’s view, the absence of Schedule A-1 creates ambiguity about the scope of the declaration—what property is included—not about the declaration’s existence. Invoking Jubb v. Letterle, 185 W. Va. 239, 406 S.E.2d 465 (1991), which holds that “the intention of the parties governs” in construing covenants, Judge White would have remanded to the circuit court to resolve that ambiguity through examination of subdivision plats, chains of title, prior conveyances, and other competent evidence bearing on the declarant’s intent.
Key Takeaways
- The majority treats a missing property-description exhibit as a fatal statutory defect rendering the HOA declaration unenforceable as a matter of law under W. Va. Code § 36B-2-105(a)(3).
- The dissent draws a distinction between the absence of a required element (triggering unenforceability) and ambiguity about scope (triggering factual inquiry), and would not void a recorded declaration without further development of the record.
- The dissent finds Jubb v. Letterle‘s intent-based interpretive framework applicable to fill evidentiary gaps in declarations governed by the Uniform Common Interest Ownership Act.
- A divided court signals that the legal consequences of incomplete or missing declaration exhibits in West Virginia remain unsettled.
Why It Matters
For HOA practitioners and title attorneys in West Virginia, the majority’s approach creates significant risk: a recorded declaration that references an exhibit which is lost, omitted from filing, or otherwise absent from the record may be held wholly unenforceable against a property owner who challenges it. Associations operating under such declarations have no path to enforcement even where their intent to cover a particular parcel may be clear from deeds, plats, or long-standing practice.
The dissent’s framework—treating the missing exhibit as an ambiguity to be resolved by extrinsic evidence rather than a per se nullity—would better align West Virginia with the equitable principles courts apply to other covenant disputes and would preserve the legitimate expectations of both associations and unit owners who have relied on the declaration. Until the West Virginia Supreme Court addresses the question, associations and developers should treat the completeness of recorded exhibits as a critical compliance matter.