WVOHOA is a non-profit 501(C)3, registered with the West Virginia Secretary of State.
WVOHOA cannot endorse legal counsel, businesses or political parties.

GRADUATED MEMBERSHIP FEE SCHEDULE

The three levels of membership are available:

• Qualified Homeowner or Civic Association Membership, voting membership
• Individual Membership, voting membership
• Business Membership, voting membership

GRADUATED MEMBERSHIP FEE SCHEDULE POLICY
(fee schedule established 2009, increased $5 in 2017)

Who really has the responsibility to read, review and qualify the approval of conditions & restrictions of the developer’s required covenants/servitudes in the first place?

We cannot locate the approving agency/office that reads, reviews, and approves our HOA governing documents, e.g. servitudes.  All we can locate is an original attorney that drew up the document(s) in a popular cut & paste fashion – apparently a standard procedure.

We do know [Jefferson] county requirements for a subdivision declarant/developer must provide without review the governing documents (Section 20.103 of the ordinance) – the future homeowners assume the responsibility of those covenants, servitudes for a self-sufficient subdivision; e.g. HOA. 

Also see FAQ#56

Depends on which county you live in. Answered by Mr. Lee Thorne, District Five Engineer/Manager WV DOH:

JEFFERSON COUNTY: The Jefferson County 911 director, pursued through the former Traffic Engineering Director an exception and there are no route numbers on street signs in Jefferson County. As you stated, generally a green sign with white letters indicates a named road in the WV State Highway System and brown signs are for private roads. However, we are aware that there are a few cases where the wrong color sign has been installed and we are working to have them corrected. As part of this exception, Jefferson County government maintains all of the street signs in that county.

BERKELEY, GRANT, HAMPSHIRE, HARDY, MINERAL and MORGAN COUNTIES: As far as I know, there is no rule that dictates the color of the signs for private roads in the remaining counties in District Five. Some are green and some are blue. However, if there is no route number then they would be considered a private road and the WVDOH would not perform maintenance on them. (Pendleton County is located in District 8)

select: the complete reply and original inquiry 2/7/2013 

WVOHOA is a cohesive force to protect the interests and welfare of home owners.  Sharing information – increasing knowledge.

The addition of West Virginia counties (and there are fifty-five) was certainly a goal and one in which is determined by education and outreach.

We’ve come a long way

2009 JCOHOA was but one county establishing the Organization
2010 began with Chapel View, a subdivision located within two counties, Berkeley and Jefferson.
2011 EPOHOA included the WV Eastern Panhandle of eight counties: Berkeley – Grant – Hampshire – Hardy – Jefferson – Mineral – Morgan and Pendelton. By October 2013 Tucker County was added.
2015 EPOHOA revised their Bylaws to include the outlying areas of the Eastern Panhandle of West Virginia.Thus Lewis county joined.
2019 the Organization, WVOHOA, went statewide, all 55 WV counties.

Executive session(s) are off-the-record discussions and are closed to the public. No votes, no resolutions, no motions may occur on any issue being discussed, and there are no minutes taken during executive session. Executive Session is simply a chance for the HOA Executive Board to discuss an issue for clarification.

NONE, no difference – when you purchase your property in a subdivision you are all three.

First – you cannot avoid membership when purchasing a home in a subdivision, e.g. HOA. Membership is automatic and shall consist exclusively of all the unit owners. That’s you, the purchaser of property within the subdivision – an HOA.

also see FAQ #107

Depends upon your governing documents. If your driveway is included on the deed to your property the HOA cannot trespass and tow your car. The DCCR rule “usually” carries a clause similar to no unlicensed unregistered vehicles may be parked anywhere within the subdivision. So if the damaged car carries current tags and license then you are in compliance. Always check your governing documents. Also, lets turn this around – consider the damaged car parked in your neighbor’s driveway, what action would you want of your neighbor as well as your HOA Board? It is important to look at all sides of any situation.

HARP =  Home Access Road Program
Roads that have been incorporated into the state’s system. HARP route numbers are enclosed in a five sided figure that looks like a house as seen in this example:

That depends on your governing document (s), some require 51%, 80% or more, and sometimes 2/3 of those present at a meeting. One of our HOA members provided their outline to demonstrate ” just how many votes are required ” using their own Declaration of Covenants, Conditions and Restrictions. Remember, not all DCCRs are the same.

In West Virginia a “limited expense liability planned community” is referenced in the governing documents by Covenants that contain a cap on the annual assessment. Currently [2013] the cap is $300, but it does not include insurance or optional use fees, such as trash service, etc.

          TIP: the $300 cap as adjusted for November 2021 is $1,050.00

The $300 cap can be adjusted by using the Consumer Price Index  and applying the formula in 36B-1-114 of the Act.  Due to the complexity of the formula, we suggest HOAs use a certified public accountant, attorney or similar professional to calculate the adjustment.

§36B-1-203 . Applicability to new common interest communities. — Exception for small and limited expense liability planned communities.

Be alert – understand your governing documents, you may have a specific amount outlined in your governing documents though you may not necessarily be defined as a limited expense liability planned community. Not all governing documents are the same.

Go to the website: http://www.wvlegislature.gov/WVCODE/code.cfm?chap=36B&art=1

The following is an example – a screen should appear:

You can then select ARTICLES from the left scroll bar, read the body of text within the center box and scroll up/down to continue reading using the right scroll bar. [updated 2019]

Workshops & Seminars are FREE to all WVOHOA Members in Good Standing

 November 2016  EPOHOA initiated a nominal fee policy for non-members (HOAs, Individuals & Businesses)

• $20 per person: Non-member with  RSVP registration no later than 10 days prior to a workshop or seminar.
• $25 per person: Non-member without  RSVP registration.
  

Cash or check accepted at the door – no credit cards.

WVOHOA Workshops & Seminars typically include educational packets, handouts and light refreshments.
Seating is limited, preference is given to WVOHOA Members in Good Standing.

HOAs, Individuals and Businesses are encouraged to seriously consider WVOHOA Membership.

Sharing information by increasing knowledge is the major goal of the WVOHOA workshops & seminars.
WVOHOA Membership Application

  POLICY: A policy is a standard adopted by the Board that sets out the beliefs, values and objectives that causes the homeowner association to act. (such as a collection policy, an enforcement policy, or a conduct of meetings policy). A homeowner association’s policies communicate, organize, and focus the resources of the homeowner association.

  PROCEDURE: A procedure is the process that accomplishes a particular objective. For example, the homeowner association should have a clear and defined policy regarding assessment collection. The detailed steps of how this policy is achieved comprises the procedure of collecting assessments.

  RULE – REGULATION: A homeowner association’s board of directors adopts rules, regulations or guidelines to define desired behaviors and to set limits on allowable uses of the common elements and homes or units, architectural changes and the behavior of residents and guests. Some typical examples of rules include pets, parking, noise and use of HOA facilities.

  RESOLUTION: A resolution is a method of formalizing a decision made by a homeowner association’s board of directors. Resolutions are used to adopt policies, procedures, rules and regulations or to clarify ambiguous terms in the governing documents. Resolutions should include four components:

1. Authority. The section of the governing documents that gives the board authority to adopt resolutions;
2. Purpose. Why the resolution is needed or being adopted;
3. Scope and Intent. Who will be affected, the reach, range and extent
4. Specifications. A clear and complete statement on what those bound by the rule are expected to do.

SOURCE: – definitions by Richard Thompson, a nationally recognized expert on HOA management issues. rich@regenesis.net

COMMUNITY ASSOCIATIONS INSTITUTE

A north American & International organization dedicated to building better communities, CAI provides information, education, advocacy and resources to all community association stakeholders, including community managers and homeowner leaders.

WVOHOA Board of Directors are members of CAI as well as many of our WVOHOA Members.

Depends on the HOA’s policy – typically, HOA meetings are for homeowners. However, the HOA should consider including renters, after all, renters aid in the continuing value of property. The governing documents must be followed, no matter if you rent or own.

Without knowledge you cannot abide by the governing documents. Your landlord is required to notify the HOA of your contact information as a renter. A positive action on behalf of an HOA would be to welcome renters, encourage participation on volunteer projects while being a part of the community. Interaction is necessary for neighborly acceptance – meet your neighbors, follow the website, bulletin boards and/or newsletters, stay current.

Renters represent their landlord’s property value while living in an HOA.

Most important – thoroughly read all of your HOA’s governing documents, interact with the previous board of directors, ask them questions, know and fully understand your fiduciary responsibilities, read previous minutes and do make a point of meeting your fellow homeowners in your HOA. 

We’ve located information thru LexisNexis Matthew Bender 2011 – West Virginia follows the ownership-in-place theory with respect to mineral interests. (Bogess v. Milam, 34 S.E.2d 267, 269-70 (W. Va. 1945)) West Virginia, however, does not treat an oil and gas lease as bestowing a vested property right until oil or gas is actually discovered on the property:

The title is inchoate [e.g. not yet completed or fully developed] , and for purposes of exploration only until oil is found.

If it is not found, no estate vests in the lessee, and his title, whatever it is, ends when the unsuccessful search is abandoned. If oil is found, then the right to produce becomes a vested right, and the lessee will be protected in exercising it in accordance with the terms and conditions of his contract. (Crawford v. Ritchey, 27 S.E. 220, 223 (W. Va. 1897); see also Arbaugh v. Raines, 184 S.E.2d 620, 623 (W. Va. 1971))

There are no known decisions in which a West Virginia court has considered the enforceability of a consent-to-assign clause in an oil and gas lease.

> SOURCE : Sixty-second Annual Institute on Oil and Gas Law (LexisNexis Matthew Bender 2011)

Oil & Gas Drilling in WV – FrackTracker Alliance REFERENCE IMAGE –opens in a separate window

There is a comprehensive listing online that provides links to cities and counties within the state of West Virginia to locate lawyers – you might try this website: West Virginia Dispute Resolution Lawyers .

WVOHOA is not responsible for broken and/or expired links

Certainly, there are several ways to do this.

• Check out our website, the next scheduled meeting is on the HOME page,
• link to a calendar page with a list of dates,
• e-mail: info@wvohoa.org or use the Contact form on our website
• register for news, information & updates.

WVOHOA Education Sessions are the 3rd Wednesday of each month via Zoom.
WVOHOA Board Meetings are the 4th Tuesday of each month via Zoom.
December no scheduled sessions or meetings – holidays observed

Yes, open each question by clicking on the plus sign (+) then choose print.
TIP: check your printer for plenty of paper.

This is a popular issue for discussion and serious consideration about intrusion & trespassing must be first and foremost. Put yourself in the homeowner’s position when a drone circles over your home. We bet you are concerned!

June 21, 2016 the FAA announced law for drones:
DOT and FAA Finalize Rules for Small Unmanned Aircraft Systems 

passed & effective June 5, 2018 –  West Virginia Code § 61-14-2. Prohibited use of an unmanned aircraft system; criminal penalties. The code number, not the title, has changed to §61-16-2

Federal Aviation Administration:
Online October 24, 2022  WHERE CAN I FLY and  September 21, 2022 NO DRONE ZONE

On July 15, 2015 our Organization’s 5-member Board of Directors unanimously voted to join CAI. WVOHOA renews their CAI membership annually.

Several of our members are also CAI members representing their own individual HOAs or as individuals or businesses.

You cannot count  “pie-in-the-sky income”, that’s like telling the finance company you should qualify for that million dollar loan based upon next year’s overtime at your place of employment.

However, your HOA does develop a budget. An HOA budget consists of line items in real dollars typically based upon the previous year’s expenses and income. The HOA’s expenses and income must be made available to the members. Best policy: promote transparency.

TIP:
WV §36B-3-118. Association records.
The association shall keep financial records sufficiently detailed to enable the association to comply with section 4-109. All financial and other records must be made reasonably available for examination by any unit owner …

WV §31E-15-1502. Inspection of records by members.
(a) A member of a corporation is entitled to inspect, during regular business hours at the corporation’s principal office, any of the records of the corporation …

We will assume your HOA is:
(a.) no longer under declarant/developer control,
(b.) that your HOA has received the declarant’s/developer’s Deed Of Transfer of the common areas,
(c.) your HOA (or a management company) now manages the business of the association on behalf of all the members and
(d.) someone has purchased property in your HOA who happens to be the developer/declarant.

1.) Anyone who financially qualifies can purchase one or more lots/homes in an HOA that is for sale.

2.) West Virginia §36B-2-107(b). Allocation of allocated interests. The declaration [your governing document] must state the formulas used to establish allocations of interests. Those allocations may not discriminate in favor of units [lots/homes] owned by the declarant or an affiliate of the declarant.

WVOHOA is aware in some cases in West Virginia where property owners have been exempt in paying HOA assessments as part of the rights that run with the land –  you MUST read and understand your own unique governing documents. Not all governing documents are the same.

WEST VIRGINIA
Unit owners associations may adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from unit owners. Section 36B-3-102. Public offering statement must include the amount, or a statement that there is no amount, included in the budget as a reserve for repairs and replacement and statement of any other reserves. Section 36B-4-103.
There is no statutory requirement to conduct a reserve study and no statutory requirement to fund reserves.

additionally:  Community Associations Institute’s 2013 SUMMARY OF STATE RESERVE FUND LAWS

WVOHOA NOTICE: Missing in West Virginia law concerning HOAs is declarant/developer disclosure for long term maintenance by providing a capital reserve study covering 10-20-30- years at minimum prior to the Deed of Transfer for the HOA’s common areas.

Reference WV Code 36B-1-105 Separate titles and taxation.
(c) Any portion of the common elements for which the declarant has reserved any development right must be separately taxed and assessed against the declarant, and the declarant alone is liable for payment of those taxes.

Contact your county assessor for a resolution to the issue. If that fails, you will most likely need to retain legal counsel – to avoid obvious conflict of interest do not to use the same law firm as the developer/declarant. The burden of proof is typically on the challenger, in this case the HOA – research and gather all relative documentation. In some cases HOAs have paid the tax to prevent the auction tax sale. Do not give up.

TIP: Each county recording office is a gold mine of archived facts. We suggest your HOA build a paper-trail timeline demonstrating events prior to, during and after receipt of the tax invoice. Retain duplicate copies of documentation and maintain a log of the HOA’s time & dates expended for research with the name & contact information of those assisting the HOA’s efforts. IMPORTANT:  pass records on to new board members – transparency is key to success.

Regarding tax on HOA common area contact:
David Stiles, Attorney for WV State Tax Commissioner
Department of Revenue, State Tax Department
1012 Kanawha Blvd. E, Suite 300
Charleston, West Virginia 25301

NO, THAT IS NOT TRUE !

• WVOHOA Bylaws are unique to WVOHOA only.
• HOA Bylaws are unique to the HOA only.

Bylaws are developed by many corporations, agencies, federal, state & local government organizations, as well as homeowner associations, as guidelines to administer the business of the corporation, organization or association.

Fiduciary responsibilities are the operation of the business of your HOA by managing finances & maintenance, keeping detailed records and protecting the HOA with insurance (protection of HOA common area and the Board of Directors) is typically initiated by your HOA board of directors and in some cases by a management company. Unfortunately not all HOAs consider insurance a requirement.

Serving on the Board can be an important way to impact and help maintain the well-being of your community while continually improving property values. Remember, to serve responsibly, and avoid potential legal liability, you must understand your unique governing documents to adhere to fiduciary obligations as an HOA Board member. These responsibilities MUST be forwarded to each Board of Directors every year.

HOA homeowners rely on their board of directors to follow the required fiduciary responsibilities. Don’t drop the proverbial ball concerning fiduciary responsibilities because you may believe no one cares.

In 2010 the Federal Housing Finance Agency (FHFA) published a proposed guideline outlining issues with Private Transfer Fees. Within the proposed guidelines it was defined as:

a private transfer fee covenant is attached to real property by the owner or another private party, frequently, the property developer, and  provides for a transfer fee to be paid to an identified third party (such as the developer or its trustee) upon each resale of the property. The fee typically is stated as a percentage, such as one percent of the property’s sales price and often survives for a period of ninety-nine (99) years.

Federal Register 75-FR-49932, No. 2010-N-11
opens in a separate window for your continued reading

FEIN is the same as EIN it is your federal employee identification number for the business (your HOA). It is never discontinued, reassigned or reused. Regardless of whether or not an EIN was ever used, the number is PERMANENT. An EIN cannot be canceled by the IRS; however, the business account associated with the EIN may be closed. If the EIN is needed in the future, it will still belong to the business entity (your HOA) even after the account is closed.

courtesy 4-25-2016 U.S. Internal Revenue Service (IRS)

No, that is not true! WVOHOA is not a federal government agency.

WVOHOA is an Organization exempt under section 501(c)(3) non-profit of the Code and is further classified as a private foundation. The IRS determined that WVOHOA is a private foundation under the Code section 509(a)(2). The mission of WVOHOA is built upon sharing information to increase knowledge among homeowners in homeowner associations in the state of West Virginia.

WVOHOA Documentation

uh oh – they cannot come a’ knock’in over and over, it’s harassment and a violation of the Federal Trade Commission Fair Debt Collection Practices Act.

THE RULES: Fair Debt Collection Practices Act,  www.consumer.ftc.gov/articles/0149-debt-collection.

TIP: don’t forget, when you purchased your home in the HOA you agreed to pay your annual assessment when signing your settlement papers. For example, if you disagree with how your HOA may or may not be handling the business of the association, it does not justify withholding all or a portion of your required annual assessment.

Hearings are a BIG DEAL and they are in place to work with you – a homeowner in an HOA. We’ll use the annual assessment for this example, however it could be a violation regarding another issue within your governing documents. This is how it should work:

When the Treasure or Board of Directors does not receive your annual assessment after you have received your invoice AND you continually remain silent on the issue, they have no recourse but to provide you with a notice of a scheduled hearing. They must provide a date, time, and location of your hearing. You should attend to speak up for yourself, it is not mandatory. The hearing is confidential, no other homeowners attend. This is your opportunity to explain your issue, learn what the consequences could be, work out an agreeable plan and follow through with correcting your requirement of paying your assessment thereby halting a probable lien placed on your property.

Remember, you’ve elected your Board of Directors to handle the business of the association and providing a hearing is but one instance of good business.

CONFIDENTIALITY: The members of the Board of Directors learn personal information about residents during a hearing concerning covenant violations and past-due assessments. They must treat your information confidentially. They may NOT discuss information learned at the hearing outside of the hearing even with other board members.

YES – joining WVOHOA is the first step – helping HOAs is exactly what WVOHOA does when we share information to increase knowledge! The list is extensive, we’ve provided the top six.

Priorities:

1.) Close the limited expense loophole in all fifty five (55) county ordinances by requiring the entire WV Code 36B apply, thereby restoring 36B to those limited expense communities that have been stripped of the Act’s protections.

2.) Require the declarant to provide detailed common area capital reserve expense planning related to 10, 20 and 30 year life expectancy.

3.) Require HOAs to file annual board member information with their respective county as well as the WV Secretary of State.

4.) Require HOAs to file annual financial reports based on the type of financial information that is required by Article 4 of WV 36B to be provided to purchasers before closing.

5.) Require full HOA disclosure (not just individual home disclosure of condition) to be provided to purchasers before closing.

6.) Require settlement attorneys to provide purchasers with the actual rights, responsibilities, and obligations of HOAs (not just the standard PUD paragraph that purchasers initial).

Lastly, for further review:
2008 Recommendations to the Uniform Common Interest Ownership Act
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES
West Virginia has not enacted one or more of these recommendations at this writing, June 2016.

E&O insurance is Errors & Omissions which is often misunderstood. It may include a claims-made form.
E&O is a type of liability insurance that helps protect professional advice and service-providing individuals and companies from bearing the full cost of defending against a negligence claim made by a client, and damages awarded in such a civil lawsuit.

EXAMPLES: causes that involve E&O Insurance:

• Your HOA website makes a particular statement or promise that is misleading or in some way causes a visitor to make a poor choice or decision.
• Your HOA contractor fails to execute an order in a timely manner and a substantial loss results (this could be the project itself or the cost).
• Your HOA contracts with an accountant to handle the finances of your HOA and that accountant makes a mistake on a tax return, resulting in a financial penalty.TIP: be sure your insurance agent provides exactly what your insurance covers and does not cover. Do not assume all liability insurance includes E&O coverage. It’s the “does not covers” list where you miss important benefits to your HOA that you may not clearly understand. Most important are the clarifications of:
• the actual dollar figure for coverage
• occurrence
• retroactive date
• discovery period
• limited discovery period, and
• long term viability of coverage

There are so many – we’ll provide several popular & persistent comments/questions received during past home shows.

1. Obtaining HOA governing documents was the most frequent request with a second being how to learn who the board of directors are from a particular HOA and what are their terms.

2. Homeowners do not know what a reserve study means and how/why it would be beneficial to their members and common areas.

3. Homeowners want to know how to get a hoarder to respond and bring their property into compliance.

4. Homeowners were generally dissatisfied with the lack of knowledge their HOA Officers demonstrated regarding violations, fines and “calming irate neighbors”.

5. Homeowners do not receive any training or HOA courses in learning how to operate the business of their association. They complain it is by “osmosis” they manage their association’s business. Always trial and error, though more errors.

6. Homeowners cannot receive guidance from local or state and nothing from their delegates or other elected office holders to aid them in answering questions after their development has been built out.

7. Homeowners want to know how to file harassment documents against an offensive board officer, including trespassing, removal & destruction of homeowner property and physical abuse.

8. Homeowners do not understand their fiduciary responsibilities, especially the requirement of filing with the Secretary of State or forwarding their own HOA responsibilities on to the next elected board of directors.

9. Homeowners did not realize that an HOA is NOT responsible for damage or poor workmanship by the builder to their individual property. That the Association is responsible ONLY for common areas.

NOTICE: these comments/questions were from homeowners in single family & townhouse residential subdivisions.

Liability is the big answer!
Sometimes, homeowner-HOA disagreements result in lawsuits against the HOA. Not infrequently, such suits also name one or more HOA board members. Without adequate Directors and Officers (D&O) insurance, a lawsuit against an HOA board member can leave the member responsible for paying legal costs, expenses, and even damages. Since no prospective board member wants to risk going broke as a result of acting on the board, in order for an HOA to attract and keep good board members, adequate D&O insurance is a must.

What HOAs Need to Know About D&O Insurance
Learn why Directors and Officers (D&O) insurance is a must for homeowner associations.

Courtesy Beth Ross, Attorney (legal information is NOT legal advice)

WVOHOA meetings are different and challenging, we encourage all members of HOA board of directors to attend, including their homeowners who may eventually be elected by their own members in the future. Downside: when just one director attends a WVOHOA meeting it is often difficult for that lone director to share information to increase knowledge and provide their written report back to their board.

In the meantime you might try our crossword puzzle or leadership word search, both print on 8.5×11, and let us know when you’ve completed it.

(you will see reference to our former name EPOHOA, this will not hamper success in completing the two games.)

Under US Internal Revenue Code 528, homeowners associations are exempt from taxes on income carried over, as long as

• at least 60 percent of gross income comes from membership assessments, and
• 90 percent of that income is spent on maintaining the association’s property.
  

1976—Pub. L. 94–455, title XXI, § 2101(a), Oct. 4, 1976, 90 Stat. 1897, added part heading and analysis for part VII.

§ 528. Certain homeowners associations

Typically all committees should/must maintain and publish notice of their actions to unit Owners and the Executive Board. It is smart to provide written summary for the Board of Directors to include within the minutes as part of the permanent record of proceedings.

For example, when your HOA Board appoints you as their representative to attend meetings outside of your HOA, e.g. WVOHOA, County Commission, Planing & Zoning or perhaps contractors being considered and yes, even state legislation assemblies, etc., representatives attend, like you, on behalf of their HOA.

As your HOA representative, you agreed to attend related meetings and/or assemblies faithfully and with due diligence. We encourage you to always inform your HOA of date, location, subject, proceedings, and summary facts covered. Should handouts or materials be made available you should also bring those back to your HOA Board for circulation to your homeowner members.

Sharing information is indeed increasing knowledge!

Fidelity Bond
Fidelity insurance requirements protect association operating and reserve funds from inappropriate use, embezzlement or stealing on the part of board members having access. Community associations are required by law to have this coverage.

Below is a reprint of the fidelity insurance requirements from Fannie Mae:

The fidelity insurance policy should cover the maximum funds that will be in the custody of the owners’ association (or cooperative corporation) or its management agent at any time while the policy is in force. A lesser amount of fidelity insurance coverage is acceptable for a project if the project’s legal documents require the owners’ association (or cooperative corporation) and any management company to adhere to certain financial controls. Even then, the fidelity insurance coverage must at least equal the sum of three months of assessments on all units in the project.

A lender may accept reduced fidelity insurance coverage based on greater financial controls only when the financial controls take one or more of the following forms:

• The owners’ association (or cooperative corporation) or the management company maintains separate bank accounts for the working account and the reserve account, each with appropriate access controls, and the bank in which funds are deposited sends copies of the monthly bank statements directly to the owners’ association (or cooperative corporation);

• The management company maintains separate records and bank accounts for each owners’ association (or cooperative corporation) that uses its services and the management company does not have the authority to draw checks on – or to transfer funds from – the owners’ association’s (or cooperative corporation’s) reserve account; or

• Two members of the Board of Directors must sign any checks written on the reserve account.

SOURCE:  http://homeownersassociationinsurance.net/fidelity-bond/

Some HOAs prefer magistrate court and may be successful, while attorneys representing an HOA will use a civil court.  An HOA is not a person and must be represented somehow, that’s when attorneys enter into the situation. Don’t forget when a case involves real property, you must file in the county where the property is physically located.

MAGISTRATE COURTS: magistrate courts, which handle small claims is where most court cases are heard. Because magistrates have the most contact with the public, they are known as the “people’s court.”

There are 158 magistrates in West Virginia, at least two in every county and ten in the most populous county, Kanawha County. They hear misdemeanor cases, conduct preliminary examinations in felony cases and hear civil arguments with $5,000 or less in dispute. Cases lost in magistrate court can be appealed to circuit court.

CIRCUIT COURTS:
There are thirty-one circuit courts in West Virginia with a total of seventy circuit judges. Circuit courts are West Virginia’s only general jurisdiction trial courts of record. They have jurisdiction over all civil cases totaling more than $300. Civil cases usually involve private property rights, not criminal activity.

cases for each county in West Virginia, in the year of 2015

Courtesy West Virginia Judiciary

W. Va. Code § 55-2-12 (1959) (Repl. Vol. 2000) provides, in pertinent part, that [e]very personal action for which no limitation is otherwise prescribed shall be brought . . .

(c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.

W. Va. Code § 36B-3-116(d) (1986) (Repl. Vol. 2005), “[a] lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due.”

reference reading: Stone Gate Homeowners Association, Inc., et al, Supreme Court of Appeals of West Virginia – Filed May 10, 2007

Courtesy: David C. Hardesty, Jr., Introduction to Bill Drafting in West Virginia, 118 W. Va. L. Rev. Online 68 (2016); referencing Dr. L. Christopher Plein, West Virginia University College of Law.

WV Bill Drafting Considerations:

• How do you frame the question(s) or define the issue(s) you are addressing?
• Why is (are) the issue(s) important now?
• Is legislative action the best means of addressing the matter(s)?
• What is the intent or purpose of your proposal?
• Can your proposal be informed by comparable actions taken on this or similar issues in this state or other jurisdictions?
• Are there potential negative spill-over effects or unintended consequences of your proposal that can be identified and addressed now?
• What is your time frame for realizing the policy?
• Does your proposal take into account the committee system, rules, politics, and traditional realities of the legislative arena? When is the best time to compromise on tough political issues?
• Does your proposal complement existing policies, institutional arrangements, and traditional practices?
• What types of findings, sanctions, remedies, and other tools will be used to encourage the changes you would like to see adopted?
• What objectives and benchmarks will be used to allow for future policy review and assessment?
• Is your particular policy proposal superior to other proposals designed to achieve similar concerns?

NOTE:

36B is the Uniform Common Interest Ownership Act that most, though not all, homeowner associations in West Virginia follow either in part or whole depending upon the choices of their Declarant/Developer when initiating the association’s Declaration of Covenants, Conditions and Restrictions.

YES – Colonel Shaun J. Perkowski, Wing Commander of the 167th Airlift Wing was one of our Organization’s guest speakers in 2016 and he provided attendees with the 167th Airlift Wing Flying Operations FAQs and answers.

• Why are the C-17s flying in the local area more than the C-5s did?
• Why are the C-17s required to fly at night?
• Why can’t you reroute flights to avoid residential areas?
• What other actions are being taken to help residents?
• How do I file a noise complaint?

WVOHOA has not tracked associations that put on fireworks displays, though it is a good future survey question to consider.

However, we encourage any HOA to contact their insurance company, the local fire department and the city or county of their location for any requirements and/or guidelines that may be required. We also encourage HOAs to review their governing documents and consider developing a fireworks policy.

2016-2017 WV State Fire Marshall Fireworks Display Application

reference  firemarshal.wv.gov

The State statute on Open Governmental Proceedings, sometimes called the Open Meetings or “Sunshine” Act, was enacted to ensure that the proceedings of all public agencies are conducted in an open and public manner, so that the people may be informed about the actions of their governments and retain control over them.

Reference Summary West Virginia Code § 6-9A

An HOA is not a public agency.

Member homeowners,  e.g. all unit owners within an HOA retain their attendance rights at board meetings and annual meetings with the exception of executive session.

WV Uniform Common Interest Ownership Act §36B-3-108. Meetings.

A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by unit owners having twenty percent, or any lower percentage specified in the bylaws, of the votes in the association. Not less than ten nor more than sixty days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner.

The notice of any meeting must state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove an officer or member of the executive board.

COMMENT : not all WV HOAs enjoy the full intent of the law regarding §36B.

HOA board of directors’ meetings are not necessarily noticed by a secretary through the US mail. Most HOAs post the time, date & location on a physical bulletin board, website or through e-mail.

However, it is a requirement of an HOA Annual Meeting that notice be given through the US mail to all homeowners, e.g. unit owners.

Most important – be familiar with and review your HOA governing documents.

also see FAQ #39

HOAs must have insurance and are sometimes unaware of optional coverage.  We have provided a summary of non-definitive options. The attached article is in the public domain. It may help the reader to understand options by learning about Errors & Omissions (E&O) for their current HOA insurance as well as their members’ individual homeowner insurance coverage.  WVOHOA encourages everyone to contact their own insurance carrier for information.

Sinkhole insurance may not provide coverage for damages from mine subsidence, so be sure to review your policy carefully to see if you need additional insurance.

Mine Subsidence: [the keyword to look for in your insurance policy]
Man made underground mines, including, but not limited to coal mines, clay mines, limestone mines, and fluorspar mines and recently fracking/drilling collapse.

ISO HOMEOWNERS OPTIONAL COVERAGE ENDORSEMENTS
PDF 18 pages

one example:
HO 04 99–Sinkhole Collapse

This endorsement provides coverage for direct loss caused by sinkhole collapse, and renders the basic policy exclusion of earth movement inapplicable to such an occurrence. Sinkhole collapse is physical damage suffered when underground action of water on limestone or similar rock strata causes the actual collapse or settlement of the earth supporting the damaged property.

also see FAQ #77

What you are looking for is: HOA DEBT COLLECTION – RIGHTS – OPTIONS – ACTIONS

WVOHOA Members in good standing have access to workshop materials.

Your membership MUST  be in good standing.
Contact membership@wvohoa.org for the password to access protected areas of the WVOHOA website.

STEP 1:
choose EDUCATION from the menu bar
STEP 2:
click Workshops and Seminars
STEP 3:
click Continue to Login
STEP 4:
type in the password then click Enter

Hurray – Success, you have access to previous education sessions, workshops and seminars including court forms & educational videos.

Or use our handy tip sheet prints on 8.5×11 paper (you will spot references to EPOHOA, that reference is the same as WVOHOA)

First – you appear to have a Board of Directors that have knowledge and understanding by looking out for your property values and increasing your annual assessment each year.

Second – the real cost to maintain and sustain your HOA’s property, e.g. COMMON AREA can be found by reviewing your:

• Annual Budget provided prior to and during your annual meeting, and/or by
• Reviewing your reserve study

Unfortunately there is no WV disclosure law, at this writing [2017], requiring a declarant [developer] to provide that critical information for you. The responsibility rests entirely on the shoulders of your Board of Directors.

Should your Declaration of Covenants, Conditions and Restrictions include WV §36B Uniform Common Interest Ownership Act (UCIOA) there are two sections that immediately come to mind that may be helpful:

§36B-3-118. Association records.
The association shall keep financial records sufficiently detailed to enable the association to comply with section 4-109. All financial and other records must be made reasonably available for examination by any unit owner and his authorized agents

§36B-4-101. Applicability; waiver.
(i) The declarant [developer] has a reasonable and good faith belief that the maximum stated assessment will be sufficient to pay the expenses of the planned community;

also see FAQ #62

Any HOA, including yours, should last as long as the Board of Directors exists and follow the Declaration, the Bylaws and continue updating amendments, policies, resolutions and guidelines, e.g. governing documents.

Enforcement depends on how well a Board of Directors remain dedicated to increase property values.

At this writing [summer 2017] there are no WV laws to require a staffed state agency to enforce HOA’s to follow their HOA governing documents.

Bottom Line: it’s all up to you, the homeowner, to make or break the longevity of your HOA.

WVOHOA cannot answer all the questions, though we can indeed try, we’ve received a reply from Rich Olsen, Director, WV Legislative Services,  Acts of the Legislature of West Virginia

Original Inquiry 8-1-2017:

I am having trouble locating CHAPTER 129 when reading Chapter 36B-1-201.

129 might be a typo or repealed, can you help me please?

§36B-1-201. Applicability to new common interest communities

Except as provided in sections 1-202 and 1-203, this chapter [36B] applies to all common interest communities created within this state after the effective date of this chapter.

The provisions of chapter fifty-three [§53 Extraordinary Remedies], acts of the Legislature, one thousand nine hundred sixty-three [1963],

chapter one hundred twenty-nine [§129], acts of the Legislature, one thousand nine hundred eighty [1980], typo – repealed?

and chapter thirty-eight [§38 Liens], acts of the Legislature, one thousand nine hundred eighty-four [1984], do not apply to common interest communities created after the effective date of this chapter.”

Reply from Rich Olsen, Director, WV Legislative Services  8-11-2017:

As stated previously, the language highlighted above and found in current code 36B-1-201 refers back to a previous enactment of the Legislature. Acts of the Legislature 1980, Chapter 129 is the original enactment of Chapter 36B. As it was enacted in 1980, it was relating to the Uniform Condominium Act (which is separate and distinct from Chapter 36A, Condominiums and Unit Property).

Chapter 36B in its current form, the Uniform Common Interest Ownership Act, was enacted in 1986. Acts of the Legislature, Chapter 164. The 1986 reenactment of Chapter 36B replaced the previous language, relating to the Uniform Condominium Act, in its entirety and renamed it the Uniform Common Interest Ownership Act.

The 1984 date which you mentioned is incorrect. There was indeed a reenactment of Chapter 36B in 1984, which can be found in Acts of the Legislature 1984, Chapter 38, but the language then replaced the language first enacted in 1980, leaving it as the Uniform Condominium Act.

• Mr. Olson also provided attachments
  Acts 1986,  Chapter 164
  Acts 1980,  Chapter 129

Well this question is easy – though in some instances HOAs may not be fully aware.

The two most important points are:

•  All HOAs should review whether their current insurance policies include coverage for fair housing claims.
•  All HOAs must ask themselves what constitutes a “reasonable” accommodation.

“For example, if an undue financial and administrative burden would be placed on the association or if the accommodation would fundamentally alter the nature of the association’s operations,  the request can be denied.

Whether an accommodation constitutes an undue financial or administrative burden will vary from case to case and will depend on a number of factors, such as the association’s financial resources, the benefits that the accommodation would provide, and the availability of alternative accommodations that may meet the person’s needs.

With reasonable modifications, there must be a close relationship, or nexus, between the requested modification and the disability. If there is no such nexus, the association may be able to refuse to allow the modification.

However, the nexus is often very fact specific and will vary in each case depending on the nature of the disability and the specific modification that has been requested.”

Courtesy of Rees Broom, Inc. – Attorneys at Law
Community Associations Institute (CAI)
2011 Newsletter (PDF)

also see FAQ #91

Solar panels cannot be refused – BUT (yes, there is always a but) you must follow the HOA’s guidelines and that’s where homeowners receive approval or refusal.

West Virginia §36-4-19. Solar energy covenants unenforceable; penalty. (effective June 2015)

The most important practice of any homeowner associations’ Architectural Committee must be reasonableness.

Typically, HOAs are responsible for developing solar panel guidelines, especially if and when they are not specifically outlined in the Declaration of Covenants, Conditions and Restrictions of which are generally aimed at restricting certain property uses of a homeowner and ensuring uniformity of appearance.

Whenever a homeowner is denied installation of solar panels (or any other requests) the homeowner has every right to appeal, and yes, retain their own legal counsel. TIP: homeowners’  DCCRs, Bylaws and Guidelines outline time frames for particular actions to be completed, such as 30-60-90 days.

“The problem arises in the context of the association’s architectural controls, commonly found in its declaration of covenants, conditions and restrictions (CC&Rs). The developer creates these [D]CC&Rs to ensure the uniform appearance and preserve the ‘curb appeal’ of the project throughout its construction and build-out phase. After the development phase is completed, the responsibility for interpreting and enforcing the architectural controls is passed onto a Homeowner Association and its Architectural Review Committee made up of elected members of the community. In the hands of an overzealous ARC, [D]CC&Rs can become a straightjacket to solar development.”

Department of Energy 2016

(Subdivision developers/builders in most states after 2015 were smart in erecting new homes to take advantage of “positioning” for their new home buyers as a selling plus. We have all learned south facing is optimum in the northern hemisphere, and north facing is optimum in the southern  hemisphere for solar panels to be efficient.)

Generally speaking, there can be conflicting opinions about whether a particular situation is an “emergency.”

Most if not all HOAs in West Virginia have text in their governing documents defining emergency; for example:

“circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and by necessity make it impracticable to provide notice as required“.

“IF” your governing documents do not address the issue of emergency, we suggest encouraging your board to consider an addition of text that is reasonable.  And remember use of the words “emergency” and “action” must be clearly defined. All additions to your governing documents must be provided to all members of your HOA.

We have a recent example – it was involved in a law suit in California.

Solar Panels & Solar Energy Systems
This case is an example for non-Californian HOAs in West Virginia to develop guidelines for solar installation.

West Virginia HOA law at this writing [2017] is silent concerning HOA reasonable restrictions or prohibitions.

This document is a reference  – a model for content development for HOA solar installation restrictions.

OK – lets outline this in the simplest way.

The members elect the directors who serve at the pleasure of the members.

Thus: THE EXECUTIVE BOARD

The directors elect (and at times appoint) the officers who serve at the pleasure of the directors.

 For example: two key West Virginia codes cover this with:

CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.

ARTICLE 8. Directors and Officers.

CHAPTER 36B. UNIFORM COMMON INTEREST OWNERSHIP ACT

§36B-3-103. Executive board members and officers. and

§36B-3-106. Bylaws.

A layman’s explanation by Hughs Gill Cochrane P.C., California attorneys. WHAT’S THE DIFFERENCE BETWEEN DIRECTORS AND OFFICERS?

TIP: follow your governing documents – not all governing documents are the same.

• review your HOA’s color pallet to select from.
• if your HOA’s governing documents are silent concerning color definitions ask your Board of Directors for clarification.

 A quick search online returned: Earth tone is a color scheme that draws from a color palette of browns, tans; any of various rich colors containing some brown. The colors in an earth tone scheme are muted and flat in an emulation of the natural colors found in soil, moss, trees and rocks. Earth tone colors come from natural things around us: brown soil, green leaf, sky, as well as the red sun. These palettes can create a warm, nature-friendly atmosphere. Natural tones are also considered “earth tones”.

Courtesy: Wikipedia

TIP: HOAs would be smart to include guidelines. Ambiguity exists in a document when a word, phrase, or provision in the document has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.

WVOHOA’s Board of Directors is a member of Community Associations Institute. CAI has updated information including West Virginia within their Fact Book. We provide their fast facts on West Virginia.

CAI supports public policy that recognizes the rights of homeowners and promotes the self-governance of community associations—affording associations the ability to operate efficiently and protect the investment owners make in their homes and communities. When state legislatures consider amending the laws governing community associations, CAI recommends consideration is first given to well-drafted model statutes that are the product of non-partisan, thoughtful deliberation. These statutes are developed and promoted by the Uniform Law Commission (2008 Suggested Amendments) —the Uniform Condominium Act (known in WV as 36A) and Uniform Common Interest Ownership Act (known in WV as 36B), also known as UCIOA.

YOU are not alone!

Many new homeowners discover they must follow their governing documents and they have no idea what they are let alone where to start. YOU can do the research or review the following basic paper trail your HOA Board of Directors should have in their files and provide copies to you upon request.

1.  West Virginia Legislature – several key laws regarding HOAs in our state are:

• §31E. WEST VIRGINIA NONPROFIT CORPORATION ACT
• §36A. CONDOMINIUMS AND UNIT PROPERTY ACT
• §36B. UNIFORM COMMON INTEREST OWNERSHIP ACT [HOAs]
  
• §38. LIENS. ARTICLE 4. EXECUTIONS. WV Sheriff’s Liens, Writs

2. West Virginia Secretary of State:

• Certificate of Incorporation
• Articles of Incorporation
• Supplemental Amendments

3. Your County Recording Offices:

• Initial and any additional Builder/Developer/Declarant community impact statement
  This document and any additions to it is VERY important, it’s the beginning of the subdivision build-out, it had to start somewhere!  Typically includes explanations concerning storm water, flood plain(s), historic markers, protected land & waterways, endangered species (flora & fauna) and a host of other restrictions & benefits that are not usually included in HOA documentation provided to each homeowner.
  
• Original subdivision plat (not just your individual lot)
• Supplemental Amendment(s) to the original plat
• Original Declaration of Covenants, Conditions & Restrictions*
• Supplemental Amendment(s) to the original Declaration
• Deed transferring the subdivision Common Area to the homeowners
• Supplemental Amendment(s) to the original subdivision Common Area
• Your Homeowner Settlement Documents

* When you purchased your home in the HOA you should have been provided the Declaration from either the real estate attorney and/or the HOA itself. TIP: remain pro active – pass the Declaration on to the next purchaser when you sell your home.

4. Your HOA Board of Directors – minimum information:

• Notice of your Annual Meeting date-time-place with Agenda
• The annual roster of the Board of Directors with basic contact information
• Approved Minutes
• Amendments, policies, resolutions, rules, guidelines, procedures, applications, forms, etc.
  
• Proposed and actual budgets which include
  a) Annual Assessment Amount you are required to pay
  b) General Operating Account Line Items (monthly expenses)
  c) Capital Expense Account Line Items (reserve account for maintenance over 10-20-30 plus years)
  

Remember:  YOU are a member of the HOA and the Board of Directors is in place because you chose from your peers to transparently manage the business of the association for you. Board members are required to step outside their immediate circle of family and neighbors and make decisions based on the greater good of the community.

Due to developer/declarant privilege to exempt certain HOAs from all but 3 sections  (1-105, 1-106 and 1-107) of 36B, that exemption (1-203) causes great angst among homeowners and their elected boards to manage the business of their association over 10-20-30 years . TIP: law or no law – HOAs must be sustainable to preserve & increase property values.
WEST VIRGINIA

Unit owners associations may adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from unit owners. Section 36B‐3‐102. [Powers of unit owners’ association.]

Public offering statement must include the amount, or a statement that there is no amount, included in the budget as a reserve for repairs and replacement and statement of any other reserves. Section 36B‐4‐103. [Public offering statement; general provisions.]

 There is NO statutory requirement to conduct a reserve study and NO statutory requirement to fund reserves in West Virginia.

Courtesy http://www.complexsolutionsltd.com/pdfs/state-laws.pdf

Your HOA may have a contract that states only the board of directors interacts with the property management company. Always put your concerns in writing, include your name and contact information.

As an HOA Member it is YOUR responsibility to attend board meetings as well as notifying your board of directors with issues you are concerned about. The Board will contact the management company, it is the board’s fiduciary responsibility to follow through.

You voluntarily, without duress, purchased WV property, e.g. lot/home, in an association.

Your property value includes your right to access the commonly owned amenities in your association.

Your individual DEED and any restrictions recorded against your land control.

Typically, your DEED states the association’s name, location, and any restrictions that run with the land you’ve purchased.

You are automatically a member in  your association.

NOTICE:  West Virginia associations developed prior to 1986 follow the WV Uniform Common Interest Ownership Act (§36B), with some exceptions. Optional membership is not listed as an exception. The association also follows the WV Nonprofit Corporation Act (§31E).

also see FAQ #18

In a homeowners association there are at least two rules:

1.) Your governing documents may refer to an owner’s property, with a statement similar to:

Each owner shall keep all lots owned by him, and all. improvements therein or thereon, in good order and repair, including but not limited to the seeding, watering and mowing of all lawns, the pruning and cutting of all trees and shrubbery and the painting (or other appropriate external care of all buildings and other improvements, all in a manner and with such frequency as is consistent with good property management.

2.) The owner’s Deed of Trust typically carries a statement similar to:

Borrower shall not destroy, damage or impair the property, allow the property to deteriorate or commit waste on the property. Borrower shall maintain the property in order to prevent the property from deteriorating or decreasing in value due to condition.

UPDATE July 10, 2018
WV Senate Bill 412 Passed
Authority of county commission to regulate unsafe or unsanitary structures and refuse on private land
§ 7 – 1 – 3ff (Amended Code)
§30 – 29 – 1 (Amended Code)

WV requires non profit corporations (an HOA for example) to be in compliance with §31E WEST VIRGINIA NONPROFIT CORPORATION ACT, therefore:

§31E-15-1501. Corporate records.
(a) A corporation shall keep as permanent records minutes of all meetings of its members and board of directors, a record of all actions taken by the members or board of directors without a meeting, and a record of all actions taken by a committee of the board of directors in place of the board of directors on behalf of the corporation.

CAUTION be aware and be alert. This is commonly known as a conflict of interest. (your question did not include your HOA’s number of bids received on the job, let alone if the job was sent out for bids.) We will address the answer as if your director bid on the job and won the bid to do the work.

State laws and/or case decisions have held that contracts that an association enters into which result in a personal benefit to a particular director are either void or voidable unless:

(i) the material facts of the transaction and the director’s personal interest are fully disclosed to the association’s members, and the transaction is thereafter approved by the members without the interested director participating in the vote; or

(ii) the material facts of the transaction and the director’s personal interest are fully disclosed to the association’s directors, the transaction is just and reasonable as to the association, and the transaction is approved by the directors in good faith without the interested director participating in the vote.

Courtesy: Lawrence Szabo, Esq.

The responsibility for payment of the annual assessment is the owner of record.

“The county or state would not own it. The state has the tax lien. The owner has a period of time to redeem or it will go up for sale at the Auditors sale. As far as the HOA fees I do not know. I am sure the state does not pay any HOA fees. It goes to Sheriff’s sale first and if it is not redeemed by the owner after 18 months, it then goes to the auditor’s sale. I know you have heard us say sold to state, but they actually do not take the ownership. They only take possession of the tax lien. The owner still owns the real estate until a tax deed recorded to the new owner.”

Angie Banks, Assessor – Jefferson County, WV – July 2018

Federal Income Tax Filing Responsibilities – The following are general federal income tax filing responsibilities for community associations:

1. All associations must file a federal income tax return every year. The lack of taxable income does not eliminate the need to file, and filing a tax return does not necessarily mean that the association owes the government money.

2. A community association is generally required to file its federal income tax return as a corporation using Form 1120, but may elect to file as a homeowners association using Form 1120H, if it meets certain requirements. The association should consult its tax professional regarding this choice because tax rates are different.

3. A community association’s Federal Form 1120-H by the 15th day of the 4th month after the end of your association’s tax year. It is possible to obtain up to a six-month extension of time in which to file a return. If an association needs an extension, it must file an extension request form and pay any expected tax due by the original filing deadline.
    BUT, yes there is always that but …
an association with a fiscal year ending June 30 must file by the 15th day of the 3rd month after the end of its tax year. An association with a short tax year ending anytime in June will be treated as if the short year ended on June 30, and must file by the 15th day of the 3rd month after the end of its tax year. 2020 Form 1120H Instructions

4. If previous boards failed to submit tax returns for previous years, the current board is not absolved from filing a return for the current year or for any previous year that was omitted.

5. An association may be required to make quarterly payments of its estimated annual tax, depending on the tax filing method it uses. When a tax professional prepares an association’s tax return, he/she will notify the association if it needs to make estimated tax payments for the upcoming year.

6. State income tax filing requirements vary from state to state. They are not necessarily the same as federal requirements.

Courtesy: Financial Operations – Best Practices Vol.4 – ISBN 978-0-941301-65-7
Published by the Foundation for Community Association Research

The North American Industry Classification System (NAICS) contains important information to assist you. The most recent is:

2017 NAICS Manual. Typically amended on 5-year intervals.

“8134 Civic and Social Organizations” which is a MEMBERSHIP ASSOCIATION. e.g. HOAs. This is the BUSINESS PURPOSE code the WV Secretary of State will use to identify your HOA.

We have highlighted several areas in this NAICS  document. WVOHOA does not and cannot enforce the use of any NAICS codes;  we only provide known information.

reference: https://www.census.gov

04-29-2022 for questions, assistance, guidance contact Chris Alder, WV SOS Division Director of Business & Licensing Division at (304) 356-2617.  Mr. Alder can assist you with your issue(s) in most cases.

All WV non profit, not-for-profit, non-stock HOAs are required to file with the WV Secretary of State. HOAs must collect the required annual assessment – the financial support for maintaining common area(s).

WV Code 59-1-2a is specific: all activities engaged in or caused to be engaged in with the object of gain or economic benefit, direct or indirect. Furthermore: no corporation may engage in any business activity in WV without paying the annual report fee (currently $25/year) and filing the annual report as required in WV Code 31E Nonprofit Corporation Act.

TIP: WV Code 47-9A-3(d) is specific: the WV SOS application for a voluntary association’s registration contains the eleven (11) required responses.

It is important for HOA Boards of Directors to maintain the good standing of their corporation, if they don’t have an active corporation that’s conducting the business of the association, there’s a potential for personal liability of owners and/or board members.  An insurance company could say your association isn’t a valid corporation, so it can’t enforce any provisions in its governing documents, e.g. no coverage, no representation and/or no protection by the insurance company, no legal claim may be valid.

also see FAQ 48 and 72

Your HOA cannot help you – it’s YOUR own individual property, your home. It is not the responsibility of your HOA. YOU are responsible for the actions of your renter.

Onward:

Civil forfeiture prohibits the government from confiscating property unless it can show “by a preponderance of the evidence” that the property is substantially connected to the crime. This is a much higher standard of proof than “probable cause.”  If a property owner successfully challenges the seizure in court, the government has to pay legal fees. And if the confiscation causes substantial hardship to the owner, the government just may release the property.

reference – not definitive:  US Department of Justice:

• 9-119.000 – Asset Forfeiture Approval, Consultation, And Notification Requirements [updated April 2018]
• 9-111.000 – Forfeiture/Seizure
• 9-111.123 – Avoiding Liability Seizures [updated May 2010]

 “Unless otherwise provided in the governing documents” your HOA has the discretion to establish its procedures within its governing documents.

For example, lets say that your Declaration of Covenants, Conditions and Restrictions specifically state all homes must have a driveway.

Ask yourself does it include the length or width of the driveway? How about cement or blacktop or perhaps gravel?

Ahhhh rubber words like nuisance is a challenge.

The courts have defined it as “characterized by a pattern of continuity or recurrence of objectionable conduct”

WVOHOA INDIVIDUAL MEMBERSHIP consists of and is understood to be one home. If you and your family live in the same house and you choose to  join WVOHOA you have one individual membership including your family. WVOHOA Membership is renewable January of each year.

also see FAQ #3

Graduated Membership Fee Schedule

HOA governing documents typically refer to a requirement for directors & officers as  “acting in good faith”, aka the business judgment rule.

and … WV Code §36B-1-112. Obligation of good faith.
Every contract or duty governed by this chapter imposes an obligation of good faith in its performance or enforcement.

The business judgment rule is a tool of judicial review, not a standard of conduct. The rule

(1) shields directors from liability and protects decisions made by directors when the rule’s elements – a business decision, disinterestedness, and independence, due care, good faith and no abuse of discretion – are present and a challenged decision does not constitute fraud, illegality, ultra-vires conduct or waste, and

(2) creates a presumption that directors have acted in accordance with each of the elements of the rule.

[“ultra-vires”  means acting or done beyond one’s legal power or authority]

courtesy: American Bar Association, UCIOA Bill of Rights

OK there are steps to learn – have your Declaration at the ready. We are assuming your question excludes condominiums. Remember when in doubt ask your legal counsel. The following flow chart has simplified the answer:

>>> West Virginia Code §36B Uniform Common Interest Ownership Act

Additionally:

August 4, 2020 the UNIFORM LAW COMMISSION Drafting Committee has discussed the question whether to recommend a revision to apply the act to many or all old (“preexisting”) common interest communities.
Policy issues are discussed in the Reporter’s Memorandum on Scope of the Uniform Common Interest Ownership Act, and constitutional issues are discussed in the Reporter’s Memorandum on Constitutional Issues raised by the retroactive application of the Uniform Common Interest Ownership Act, both dated Aug. 4, 2020

The West Virginia Supreme Court of Appeals recognizes a lien [HOA assessment] of that nature is a “consensual common law lien” against real property and is valid and enforceable in West Virginia. [Purchasers within an HOA voluntarily agree to pay an HOA assessment, usually called a Property Unit Development, e.g. PUD rider, at the time of the purchaser’s settlement.]

The plain language of W.Va. Code §36B-3-116(f) (1986) (Repl. Vol. 2005) requires a judgment or decree in any action brought under W.Va. Code §36B-3-116 to include an award of costs and reasonable attorney’s fees for the prevailing party. The WV Consumer Credit and Protection Act §46A-1-101as amended does not apply to an HOA’s “consensual common law lien”.

Review a West Virginia  2018 case for the facts

WVOHOA is a 501(c)(3). The IRS requires our status to be available to the public. Please review our Organization’s documents at: WVOHOA Documents

WVOHOA recognizes the subtle differences between the two IRS codes. WVOHOA’s primary activity is education by sharing information and increasing knowledge, not lobbying.

1.  No organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying).  A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status.
2. 501(c)(4) social welfare organization may further its exempt purposes through lobbying as its primary activity without jeopardizing its exempt status.

TIP: WVOHOA cannot endorse legal counsel, businesses or political parties.

REVIEW:  Understanding the differences between 501(c)(3) and 501(c)(4)

WV Code §17-2C-6. Termination of orphan roads and bridges program; report to the Legislature.

The orphan roads and bridges acquisition and maintenance program established pursuant to this article will terminate on December 31, 2001.

On or before January 30, 1999, and annually thereafter, the commissioner of the Division of Highways shall submit a report to the Legislature which recounts the activities of the program and the roads and bridges which have been accepted into the state maintenance system. The report shall include a breakdown by county of those roads and bridges being maintained, the estimated costs associated with maintenance and any other information the commissioner deems necessary. Before January 30, 2002, the commissioner shall also submit proposed legislation formulating a policy for the designation and acceptance into the state system of orphan roads and bridges in the future.

WV Codes §31E-7-720, §31E-15-1501 and §36B-3-116 as amended, are some, not all, the legal requirements for homeowner associations to maintain an alphabetical name & address list of current members (owners) including your current directors & officers every year and must be available to all members within your HOA.

Many HOAs develop a community directory and include (non-required) lot number, telephone number and e-mail address to make their community more neighborly to reach each other. Many HOAs also include a community map as well.  With the addition of telephone & e-mail your HOA board should develop an agreeable policy – for example:

• The (HOA name) Directory is not provided to third parties, or
  
• The (HOA name) Directory is confidential and cannot be circulated outside of the association, or
• The (HOA name) Directory is solely for the convenience of our community, or
  
• The (HOA name) Directory cannot be distributed in whole or part to anyone outside our community for any purpose.

Protecting you and your members is key.

TIP: there will always be a member saying “I know the law, I know my rights…”

HOA Members upon request¹ have the absolute right to read, copy and save for their own reference current and past minutes of your HOA. 

In 2011 the Circuit Court of Jefferson County, West Virginia The Court found guidance as to what records a member of an HOA should be allowed to review from West Virginia Code §31E-15-1502(c) and provided the following named list of documents that should be available for inspection:

• FINANCIAL RECORDS:
  Annual financial statements, including the last completed audit, review and/or compilation
  Current balance sheet and Income statement
• MEMBERSHIP LIST:
  Only names and addresses are required, no telephone numbers or e-mail addresses
• GOVERNING DOCUMENTS: [unique to each individual WV HOA]
  HOA’s Articles of Incorporation
  HOA’s Bylaws and all amendments
  HOA’s rules, regulation policies and procedures pertaining to enforcement, assessment collection or architectural control
• MINUTES:
  All meetings of the Members and Directors
• ACTIONS:
  All decisions made at Member’s meetings and Board meetings
  All minutes and a record of all actions taken by the Members or Board of Directors without a meeting
  Records of all actions taken by a committee of the Board of Directors on behalf of the corporation
• RESOLUTIONS:
  Adopted by the Board of Directors relating to the characteristics, qualifications, rights, limitations and obligations of Members
• DIRECTORS & OFFICERS
  A list of the names and addresses of the HOA’s current directors and officers

¹Upon Request:

The HOA has ten (10) business days to fulfill a request by an owner [Member] to view records or to provide a written response as to why the request will not be granted; the HOA may not charge a Member or any person designated by the Member in writing for making records available for review, even if the HOA must spend money to prepare the records for review by the Member; and if a Member or his representative requests copies of documents, the HOA must provide copies of the requested records within ten (10) business days. The HOA may charge a fee for making copies of not more than fifteen cents per page.

Source: Civil Action #11-C-75 Entered October 18, 2011

YES, your annual assessment is capped at $300/year AS ADJUSTED to the CPI as stated in WV Code §36B-1-114 Adjustment of dollar amounts.

TIP: §36B-1-203 is based upon the number of units, e.g. individual homes

also see FAQ #25 and #130

HOA policy for a specific issue can be developed. However, Associations also need to read and understand their rights within WV Code §55-16-1. Civil remedy for making, drawing, issuing, uttering or delivery of worthless check, draft or order. And more specifically understanding WV Code §61-3-39a through 39h. Obtaining property in return for worthless check; penalty. That’s where rights of the check writer kick in – they cannot be held accountable on the same bad check twice.

read WVOHOA’s circulated response

Lets start with the most important issues: have you personally contacted your neighbor, reviewed the situation, is there property damage? Tip:  many insurance policies don’t cover tree claims if the tree falls but doesn’t damage your home or any structures; typical dog houses are not structures.

Homeowners’ personal property is the homeowner’s responsibility – not the responsibility of your HOA or your Board of Directors.

review : West Virginia Code §61-3-48. Offenses involving damage to shrubbery, flowers, trees and timber; limitation of section; penalties.

Remember trespassing is against the law and a well known fact. Neighbor to neighbor interaction together to resolve the fallen tree on both your properties would be beneficial. Both neighbors working together at the same time getting it cleaned up makes for a good relationship.

NO –  NOT VALID – your HOA’s Restricted Covenant is Void

WV Code §36-4-18. Recorded disclaimer of unlawful restrictions.
“… covenants or restrictions that are based on race, color, religion, ancestry, sex, familial status, blindness, handicap or national origin are invalid and unenforceable …”

Yes, there are exceptions to everything:

except as provided in WV Code §5-11A-8. Religious organization or private club exemption.

Specific to WV Code 36B-1-114  and 36B-1-203 exclusive of optional user fees and any insurance premiums paid by the association, may not exceed $300 as adjusted to the CPI.

• HOA Adjustment Calculator (enter numbers ONLY in green shaded cell: B3)

courtesy WVOHOA

A simple majority is the highest number of total votes cast for a candidate, an issue, or an item that exceeds the second-highest number. It does not require a unique percentage goal.

Careful, 67%  is a super majority – a required unique percentage goal.  An example would be voting for or against an amendment to your HOA Declaration – see WV Code §36B-2-117. Amendment of Declaration.

WVOHOA cannot provide legal advice, though we can provide known information to assist you.

The following criteria is important prior to your decision to purchase within an HOA in WV:

Your own overall review should include:

• Care & Condition of common areas, e.g. roads, pool, tennis court, play yard, street lights, signage, and homes in the community. The importance of care & condition is relative to the responsibilities of the HOA corporation to preserve & increase the overall property value.
• The  current status of the HOA organization with the West Virginia Secretary of State.
• Obtain and read a copy of the most current governing documents which should include the Declaration of Covenants (recorded & filed in the county where the HOA is located).
• Review WV Code §36B Uniform Common Interest Ownership Act.

An HOA’s Declaration may outline short term rental or an HOA may have instituted a policy for short term rentals, which may include vacation rentals, e.g. AirBnB, VRBO, HomeAway, etc. . The definition of short term in WV is less than 30 days – refer to: TSD-435

A typical HOA covenant restriction prohibits a commercial business from a member’s residential only home.  AirBnB is business income which must be reported to the IRS as well as West Virginia’s sales & use tax.

An HOA should consult with legal counsel.

State law trumps the governing document of your planned community. Senate Bill 690 passed March 7, 2020 effective June 5, 2020.

West Virginia Code §17 A-13-1 Street-legal special purpose vehicles; operation on highways; registration procedures; licensing requirements; equipment requirements.

“Special purpose vehicle” includes all-terrain vehicles, utility terrain vehicles, mini- trucks, pneumatic-tired military vehicles, and full-size special purpose-built vehicles, including those self-constructed or built by the original equipment manufacturer and those that have been modified.

Those vehicles must comply with the WV Division of Motor Vehicles.

Caution: Nothing in this section authorizes the operation of a street-legal special purpose vehicle in an area that is not open to motor vehicle use.

Be Aware:

§17A-13-1(c) An individual may not operate a special purpose vehicle as a street-legal special purpose vehicle on a highway if:

(1) The highway is a controlled-access system, including, but not limited to, interstate systems; or
(2) The county, municipality, or the Division of Natural Resources where the highway is located prohibits special purpose vehicles.

TIP: the area that is not open to motor vehicle use could be an owner’s lot and the common area (excluding roads) of the planned community.

To develop ingress and egress HOA policy consider WV Code:  ARTICLE 1. REGULATION OF ALL-TERRAIN VEHICLES. §17F-1-1. Acts prohibited by operator; penalties for violations.

All our Members are listed at: WELCOME NEW MEMBERS including the three types of membership, however in the spring of 2021 we have begun rebuilding  WVOHOA’s website and may consider a business membership page.

In a nutshell, payment of your due assessment is required by contract law, it’s included with your settlement when you purchased your home in a homeowner association. (PUD Rider)

WV  state law is specific to the full amount owed:

Uniform Common Interest Ownership Act §36B-1-104. Variation by agreement.
Except as expressly provided in this chapter, provisions herein may not be varied by agreement, and rights conferred may not be waived. A declarant may not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of this chapter or the declaration.

When you are in disagreement over the maintenance, or lack thereof, concerning your common area(s) you must contact your Board of Directors.

also see #121

• The Declaration describes the restrictions that run with the land you have purchased in your HOA  – you are legally bound by these restrictions.
• The Bylaws outline the procedure and operation of the HOA, specifically how to conduct the business of the association, the corporation.

No state that has adopted UCIOA has enacted Article 5 – the state supervisory role, UCIOA was primarily a disclosure law, not a regulatory law.

 Courtesy: Carl H. Lisman, Esq., 2019-2021 President – Uniform Law Commission

Here’s what law and policy say about “shall, will, may and must.”

We call “must” and “must not” words of obligation. “Must” is the only word that imposes a legal obligation on your readers to tell them something is mandatory. Also, “must not” are the only words you can use to say something is prohibited. Who says so and why?

Nearly every jurisdiction has held that the word “shall” is confusing because it can also mean “may, will or must.” Legal reference books like the Federal Rules of Civil Procedure no longer use the word “shall.” Even the Supreme Court ruled that when the word “shall” appears in statutes, it means “may.”

Bryan Garner, the legal writing scholar and editor of Black’s Law Dictionary wrote that “In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language.”

WVOHOA does not provide legal advice

WV Code §31E-7-704. Action without meeting . . .  there must be a unanimous vote in writing by the directors. The secretary preserves the action(s) as a matter of record.

TIP: typically a vote without a meeting is related to the board of directors’ procedural duty to handle a business requirement for the community at large.

WVOHOA has located external links to mineral assets in West Virginia Counties for fracking,  oil, gas, and other mineral geographical locations within our state. WVOHOA is not related to or responsible for “MineralAnswers.com” content.

The attached 55-county list is a quick alphabetically-linked reference.

example:  Barbour County, WV currently ranks #262 in the nation based on barrels of  oil equivalent (BOE) production. Has had 2,456 wells [red dots] drilled …

also see FAQ 53

Unfortunately most HOA governing documents are difficult to understand including the covenants & restrictions intended meanings. As volunteer homeowners elected to any HOA Board, those documents are paramount in handling the business of your association. We’ve provided a section of WV Code §36B ARTICLE 3. MANAGEMENT OF THE COMMON INTEREST COMMUNITY for guidance:

§36B-3-102. Powers of unit owners’ association.

(a) Except as provided in subsection (b), and subject to the provisions of the declaration, the association, even if unincorporated, may:

(1) Adopt and amend bylaws and rules and regulations;

(2) Adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from unit owners;

(3) Hire and discharge managing agents and other employees, agents, and independent contractors;

(4) Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community;

(5) Make contracts and incur liabilities;

(6) Regulate the use, maintenance, repair, replacement, and modification of common elements;

(7) Cause additional improvements to be made as a part of the common elements;

(8) Acquire, hold, encumber, and convey in its own name any right, title, or interest to real estate or personal property, but (i) common elements in a condominium or planned community may be conveyed or subjected to a security interest only pursuant to section one hundred twelve of this article and (ii) part of a cooperative may be conveyed, or all or part of a cooperative may be subjected to a security interest, only pursuant to section one hundred twelve of this article;

(9) Grant easements, leases, licenses, and concessions through or over the common elements;

(10) Impose and receive any payments, fees, or charges for the use, rental, or operation of the common elements, other than limited common elements described in subsections (1) and (4), section one hundred two, article two of this chapter, and for services provided to unit owners;

(11) Impose charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, rules, and regulations of the association;

(12) Impose reasonable charges for the preparation and recordation of amendments to the declaration, resale certificates required by section one hundred nine, article four of this chapter, or statements of unpaid assessments;

(13) Provide for the indemnification of its officers and executive board and maintain directors’ and officers’ liability insurance;

(14) Assign its right to future income, including the right to receive common expense assessments, but only to the extent the declaration expressly so provides;

(15) Exercise any other powers conferred by the declaration or bylaws;

(16) Exercise all other powers that may be exercised in this state by legal entities of the same type as the association;

(17) Institute litigation or administrative proceedings in its own name against a unit owner for the collection of dues or assessments that are overdue or in arrears; and

(18) Exercise any other powers necessary and proper for the governance and operation of the association.

(b) The declaration may not impose limitations on the power of the association to deal with the declarant which are more restrictive than the limitations imposed on the power of the association to deal with other persons.

“Rule” means a policy, guideline, restriction, procedure, or regulation of an association, however denominated, which is not set forth in the declaration or bylaws.

EXAMPLE:
No on-street parking is a restriction that runs with the land, a covenant, when included in the association’s Declaration of Covenants, Conditions and Restrictions or the Bylaws.

The “rule” would be adopted by the association’s Board of Directors not set forth in the declaration or bylaws permitting short-term on-street parking,  e.g. emergencies, deliveries, and/or special event(s).

Most HOAs registered with West Virginia prior to 2002 typically include this same reference citation. Remember HOA rules cannot override state law, therefore your HOA is smart to be aware of state law updates.

Chapter 31 Corporations (including Article 1 and Sections 27 and 28) in the 2002 Vol. 1 Acts of the WV Legislature was repealed entirely, and replaced with Chapter 31E West Virginia Nonprofit Corporation Act.
Passed March 9, 2002; in effect on June 7, 2002. Approved by the Governor.

TIP – Repealed means the removal or reversal of a law. There are two basic types of repeal.
   1.)  a repeal with re-enactment (or replacement) of the repealed law, or
   2.)  a repeal without replacement.

Your HOA may have different rules than another HOA. However, the bottom line for every single association is DO NO HARM. This means whatever amendment your HOA may consider it must be fair and it must include all members of your association.

 for your reference:  West Virginia Chapter 36B. Uniform Common Interest Ownership Act. (UCIOA)
§36B-2-117. Amendment of declaration.

(a) . . .  the declaration, including any plats and plans, may be amended only by vote or agreement of unit owners of units to which at least sixty-seven percent [67%] of the votes in the association are allocated, or any larger majority the declaration specifies. The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use. [§36B-3-103(b) . . .  The executive board may not act on behalf of the association to amend the declaration . . .]

(b) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.

(c) Every amendment to the declaration must be recorded in every county in which any portion of the common interest community is located and is effective only upon recordation. An amendment, except an amendment pursuant to section 2- 112(a) [boundary adjustment], must be indexed in the grantee’s index in the name of the common interest community and the association and in the grantor’s index in the name of the parties executing the amendment.

(d) Except to the extent expressly permitted or required by other provisions of this chapter, no amendment may create or increase special declarant rights, increase the number of units, change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners.

(e) Amendments to the declaration required by this chapter to be recorded by the association must be prepared, executed, recorded, and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.

1. You most likely agreed to a Property Unit Development (PUD) rider at your settlement.
2.  Your governing document, the Declaration of Covenants, Conditions and Restrictions and most likely your Bylaws would have text related to fines, penalties, interest and recovery of expenses, etc. .
3. WV Code 36B-3-116 Lien for Assessment provides guidelines unless your Declaration otherwise provides, fees, charges, late charges, fines and interest . . .
4. Further, an assessment in an HOA, a planned community, is a consensual lien, a financial obligation agreed to by its members.

TIP: should you disagree with actions of your HOA’s board of directors, that is your right. However, you must still pay your assessment and handle your disagreement separately. You might consider mediation, legal counsel, arbitration or in court.

also see FAQ #121

Article X of the West Virginia Constitution defines property, and the “class” is outlined by West Virginia Property Tax Classifications:

1. Class I: Intangible personal property and certain personal property employed exclusively in agriculture. [No property is currently taxed in this classification.]
2. Class II: Owner-occupied residential property used exclusively for residential purposes and all farm land used for agricultural purposes by its owner or bona fide tenant.
3. Class III: All real and personal property situated outside a municipality that is not taxed in Class I or Class II.
4. Class IV: All property situated inside a municipality that is not taxed in Class I or Class II.

source: WV Constitution &  WV Property Tax Classification