Background
Falcon Ridge is a planned residential community in Mercer County, West Virginia, created in 1994 when Shoemaker Construction Company, Inc. (SCC) recorded a Declaration of Covenants and Restrictions (“Falcon Ridge DCR”) pursuant to West Virginia’s Uniform Common Interest Ownership Act. The DCR purported to govern a 49-unit subdivision, but it referenced “Schedule A-1” for the legally required description of the included real estate — an exhibit that was never attached to the document filed with the Mercer County Clerk and was not produced in the litigation.
In 2020 and 2021, Harvey and Nancy Bellomy purchased a large block of undeveloped lots within the Falcon Ridge plat from SCC’s successors, including vacant lots, portions of internal streets, and the eastern portion of Lot 94 (where the community’s nature park and entrance sign are located). Neither deed conveying the property to the Bellomys referenced the Falcon Ridge DCR. After the purchases, the Bellomys fenced off roads, parked a cargo trailer on two lots, and told residents they were trespassing on Bellomy-owned land.
In 2023, Falcon Ridge filed suit seeking a declaratory judgment that the DCR applied to the Bellomy lots, that the community streets and nature park were common elements owned by the association, and that Lot 94 belonged to Falcon Ridge. The Bellomys counterclaimed for a declaration of unencumbered ownership. The Mercer County Circuit Court granted summary judgment to Falcon Ridge on all issues, finding the DCR enforceable and the Bellomys’ title to the eastern portion of Lot 94 ineffective. The Bellomys appealed.
The Court’s Holding
The Intermediate Court of Appeals reversed and remanded. On the central issue, the court held that the Falcon Ridge DCR is unenforceable against the Bellomys under West Virginia Code § 36B-2-105(a)(3) because it fails to contain a legally sufficient description of the real estate included in the common interest community. Because “Schedule A-1” — the only document that could have supplied that description — was never filed with the county clerk and was never produced in discovery, the statutory prerequisite for a valid declaration simply was not met. The court distinguished Jubb v. Letterle, 185 W. Va. 239 (1991), where equivalent drawings were actually produced during litigation; no such substitute was available here. Additionally, neither of the Bellomys’ deeds expressly subjected their lots to the DCR, and several other deeds in the same subdivision did include such express language — confirming that subjection to the DCR required affirmative deed language that was absent.
On the ownership of the eastern portion of Lot 94, the court held that the circuit court erred in applying West Virginia Code § 36-3-11 (governing obvious descriptive errors in deeds) to void the September 28, 2021 deed. That deed did not exhibit the characteristics of an obvious descriptive error enumerated by the statute; rather, it was a valid conveyance under West Virginia Code § 36-3-5, which requires only the date, parties, consideration, property description, and a witnessed signature. Because the September 18, 2007 deed between SCC and Falcon Ridge conveyed only the western portion of Lot 94, the Bellomys’ deed of the eastern portion was effective.
The court further held that the circuit court erred in denying the Bellomys a valid easement of ingress, egress, and utility access across Falcon Ridge’s streets. The 2007 SCC–Falcon Ridge deed conveying those streets expressly reserved such an easement for SCC and its assigns, and that reservation passed through the chain of title to the Bellomys as SCC’s successors-in-interest. The Bellomys’ remaining arguments — that the circuit court abused its judicial power by visiting the property without notice — were rejected as inadequately briefed and waived.
Key Takeaways
- A Declaration of Covenants and Restrictions recorded under West Virginia’s Uniform Common Interest Ownership Act is unenforceable as a common interest community declaration if the legally required property description (W. Va. Code § 36B-2-105(a)(3)) is missing from the recorded instrument and cannot be produced from the record.
- Even where a valid DCR exists, lots purchased without deed language expressly subjecting them to the covenants and restrictions are not bound by those restrictions — particularly when other deeds in the same subdivision did include such language.
- West Virginia Code § 36-3-11 (corrective deed / obvious descriptive error statute) does not authorize courts to void a deed that simply adds property omitted from a prior conveyance; if the deed otherwise satisfies § 36-3-5’s basic requirements, it operates as a valid conveyance.
- An express easement reservation in an intermediate deed (here, the 2007 SCC–Falcon Ridge deed) runs with the land and inures to the benefit of downstream grantees in the chain of title.
Why It Matters
This decision highlights a significant trap for HOAs and developers creating common interest communities in West Virginia: the failure to attach and properly record the legally required property description renders the foundational declaration unenforceable under the Uniform Act, regardless of the parties’ intent or the community’s long-term operation. Developers and their counsel should verify that all referenced exhibits — particularly Schedule A or equivalent property descriptions — are physically attached to and recorded with the declaration, not merely referenced.
For practitioners advising buyers of bulk or undeveloped lots within existing planned communities, the case underscores the importance of a complete chain-of-title review: whether DCR covenants run to a particular lot turns on whether prior deeds in the chain expressly imposed those obligations. Express easement reservations embedded in intermediate conveyances also deserve close attention, as they can pass downstream to buyers and create access rights — or obligations — that are not apparent from the most recent deed alone.