FAQ

Your Frequently Asked Questions (FAQs) answered by WVOHOA members.

WVOHOA itself is not licensed or qualified to provide legal advice. However, through our website and education sessions we provide several links & useful information for our members. By sharing information we all increase planned community members’ growth in knowledge.

References to local, state and federal laws – in all cases the original document of record shall prevail.

FAQ-Tip001

TIP: most recent question LAST on this extended list

 

1. What type of organization is WVOHOA?

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.

2. Who can join WVOHOA and how can my HOA become a member?

There are three levels of membership available:
1. Qualified Homeowner or Civic Association Membership
2. Individual Membership
3. Business Membership

Qualifications for membership are open to ALL functioning planned communities, no longer under declarant control, and are incorporated in the state of West Virginia. When a planned community applies for WVOHOA membership they are required to be current with the West Virginia Secretary of State.

Cost to join: Graduated Membership Fee Schedule
To apply select:  Membership Application
Contact: membership@wvohoa.org or select “About Us” for more information.

3. How much does it cost for membership to WVOHOA?

GRADUATED MEMBERSHIP FEE SCHEDULE

NUMBER OF HOMES IN YOUR HOA ONE TIME APPLICATION FEE
(non-refundable)
ANNUAL MEMBERSHIP Renewal Dues
2-25 $30 $30
26-50 $55 $55
51-100 $105 $105
100 + $130 $130
ONE INDIVIDUAL $30 $30
ONE BUSINESS $130 $130

The three levels of membership are available:

  • Qualified Homeowner or Civic Association Membership
  • Individual Membership
  • Business Membership

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

JOIN or RENEW YOUR ANNUAL MEMBERSHIP
select: pay online

or surface mail checks to:
WVOHOA Treasurer
P.O. Box 911
Charles Town, West Virginia 25414

4. What if our developer has filed for bankruptcy and we don’t know what to do?

Contact your County Commission/Council immediately. Contact your planning and/or engineering department(s) immediately. You must be prepared with copious notes, e-mails, telephone contacts, minutes, dates and times. Most important – always remain calm.

WVOHOA has members who have experienced this issue (and other daunting challenges), won in County & State courts – our members are available to share their experiences and assist you – remember, WVOHOA cannot provide legal counsel.

5. What is the $64,000 question?

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

6. I pay my HOA Annual Dues and my individual property taxes but the county and/or city never plows our roads, how come?

Depends on which county or city/municipality where your property is located and your most current Declaration of Covenants, Conditions & Restrictions.

Typically, in a WV planned community all their roads are privately owned by the community and maintained by the community, including snow plowing.  And yes, there are exceptions, some communities in WV have been annexed into a city/municipality and may be included in whole or part for snow plowing.

Division of Highways Districts
District 1: Boone, Clay, Kanawha, Mason and Putnam
District 2: ​Cabell, Lincoln, Logan, Mingo and Wayne
District 3: ​Calhoun, Jackson, Pleasants, Ritchie, Roane, Wirt and Wood
District 4: ​Doddridge, Harrison, Marion, Monongalia, Preston and Taylor
District 5: ​Berkeley, Grant, Hampshire, Hardy, Jefferson, Mineral and Morgan
District 6: Brooke, Hancock, Marshall, Ohio, Tyler and Wetzel
District 7: ​Barbour, Braxton, Gilmer, Lewis, Upshur and Webster
District 8: ​Pendleton, Pocahontas, Randolph and Tucker
District 9: ​Fayette, Greenbrier, Monroe, Nicholas and Summers
District 10: ​McDowell, Mercer, Raleigh and Wyoming

7. Why is my HOA required to pay property tax on the Common Elements (roads, street lights, maintenance/replacement of roads, flood plain, etc.) when we pay for them in our HOA Annual Dues and our own individual property tax assessment?

WV HOAs are NOT required to pay common element (common areas) property tax.

You cannot be taxed twice. The West Virginia Uniform Common Interest Ownership Act  (UCIOA) §36B-1-105 is specific about property tax assessments “prohibits separate tax or assessment” as well as the common elements property tax judgment Civil Action No. 09-C-117 is specific declared void and set aside commencing with the current tax year, 2009”. (you purchased your property with amenities, e.g. common elements and you pay an annual assessment to maintain them.)

8. When the County “floats a bond” for a developer to build an HOA subdivision just what does that mean?

Simply put it is an IOU. For example, a developer requests and may receive from the County (and in some cases the state) a financial loan of a predetermined amount to fund (in whole or part) the construction of the subdivision. The IOU “bond” must be repaid by the borrower, the developer. When the subdivision is completed the developer holds no rights and you, the total of individual homeowners at large, are then considered the self-sufficient owner of the subdivision.

Also: Government entities like towns, counties, states, and the federal government, obviously can’t sell you/the developer stocks, because they can’t “own” the government. So, they have two ways to generate revenue with which to accomplish things. They can levy taxes, or they can “float” a bond. (Float just means “offer for sale”) It’s called “float” because if you offer it and no one buys it, it “sinks.”

9. Did the WV State Tax Assessor ever reply to homeowners about taxing HOA common areas/elements?

 YES – units (your individual property & home) making up the condominium or planned community must be taxed and assessed separately, and the common elements may not be taxed and assessed separately.

select:  July 2012 THE REPLY by Jeffrey A. Amburgey, Director – WV Property Tax Division

10. What is the WVOHOA mission statement?

SHARING INFORMATION – INCREASING KNOWLEDGE
WVOHOA is a cohesive force to protect the interests and welfare of home owners.

11. Besides Jefferson County are you going to add the other counties in West Virginia?

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.

12. My HOA doesn’t show me the budget – how do I know what money is being spent or saved?

Your HOA elected officers, your Executive Board, MUST provide a proposed budget prior to the date of your annual meeting so you can clearly understand the information. At your annual meeting you will have been provided a hard copy or even an overhead projection for the assembly of homeowners to see, with discussion and definition of line items. You participate in this presentation. You, the individual homeowner, must cast your vote for or against that proposed budget. You must be provided with a copy of the ratified budget. The following statute is/should be followed by all HOAs in West Virginia. It is your protection and the required transparency expected by all HOA individual property owners who are the voters.

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

(c) Within thirty days after adoption of any proposed budget for the common interest community, the executive board shall provide a summary of the budget to all the unit owners, and shall set a date for a meeting of the unit owners to consider ratification of the budget not less than fourteen nor more than thirty days after mailing of the summary.

Unless at that meeting a majority of all unit owners or any larger vote specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners must be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board.

13. When I attend a monthly HOA meeting I am ignored and told by the Executive Board I cannot participate, how come?

Your Executive Board represents you, the membership, while following an agenda for a regularly scheduled meeting. They are responsible to present an issue, make a motion, a second, have discussion and then vote to approve or not to approve the issue on the table.

Typically attendees listen and do not interject during the business of the meeting. At the conclusion of the meeting it is common practice to open the floor to the attendees, the individual homeowners, this is called a public forum.

During the public forum you participate, discuss and/or challenge any issue. The results may take the position of being deferred to one or more future meeting(s) for the Executive Board to consider and/or act upon. Or the issue may be something as simple as an announcement by an individual homeowner. Most HOAs include a summary in their recorded minutes of the public forum because it opens transparency to the whole of the community and provides interaction with the homeowner members.

Many HOAs follow the standards outlined in Roberts Rules of Order, a procedure, not a federal or state law, for maintaining decorum and fairness. Most follow WV CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT which outline the Board of Directors legal procedures to handle the business of the corporation, your HOA.

(remember – an Annual Meeting is not a regularly scheduled board meeting – big difference)

14. Our HOA has a management company and they will not give me a copy of the minutes. How can I obtain the minutes of HOA meetings?

We are assuming your HOA has been completed, and your developer has transferred the common area deed to you, the homeowners.

  1. State law is quite clear West Virginia Code Chapters §31E-15-1501, §36B-3-118 and §36B-4-109 regarding what documents and information you are entitled to request from your HOA Board of Directors to read, copy and/or retain.  Minutes of meetings are listed as one of the many documents homeowners can request.
  2. Access to HOA minutes/records: WV 2011 Civil Action #11-C-75 pages 10 & 11

Remember –  a management company, like any other contractor for an HOA, agree to the job requirements contracted by the Board of Directors.  Unless an HOA directly hires employees and pays into unemployment and posts labor bonds, HOAs do not have employees.  The Board is responsible for the actions of the contractors, including the management company.  By the same token, management companies should freely share non-privileged information, but they cannot force the Board to respond.

The following rule is typical in most HOA governing documents: (not all governing documents are the same)

The Executive Board shall permit any unit Owner to inspect the minutes of Executive Board meetings during normal business hours. The minutes shall be available for inspection within n number (N) days [number of days are relative to the particular HOA and must be reasonable] after any such meeting.

15. I never know when our HOA meetings are let alone where they are – how can I find out about our meetings?

Regular meetings are proposed for monthly, bi-monthly or in some instances just the Annual Meeting. For regular meetings each homeowner must have access to announcements of date, time and location. Your Executive Board (or management company) must provide this information either thru a bulletin board, newsletter, website, mailings or telephone calls, for example. Anytime the Executive Board meets that meeting is by law open to members entitled to vote, e.g. unit owners, and you may attend. The following statutes are/should be respected by all HOAs in West Virginia. It is your protection and the required transparency all voters demand.

§36B-3-108. Meetings.

[for non-exempt Community Associations] 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.

§31E-7-705. Notice of meeting. (HOAs are corporations filed with the Secretary of State)

(a) A corporation is to notify members entitled to vote of the date, time and place of each annual, regular and special meeting no fewer than ten nor more than sixty days before the meeting date. Unless this chapter, or the articles of incorporation require otherwise, the corporation is required to give notice only to members entitled to vote at the meeting.

16. How come I cannot be in an Executive Session when the HOA Board calls one?

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.

Yes, there is a rare exception, an action – a vote –  in executive session must be recorded in the minutes. Action in executive session must not be abused or normalized.

17. What’s the difference between a unit owner, a lot owner and a homeowner? I never know which one I am.

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

18. I don’t want to be a member of an HOA and my choice of home is in one. How can I not be a member?

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

19. My car was damaged in an accident and I have it parked in my driveway – the HOA is threatening to have it towed, can they do that?

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 license & registration 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.

20. Is there any law to control or prevent ATVs in our subdivision?

Check your governing documents, as well as your county ordinance, both documents may carry a clause to regulate ATVs,  Also review the following 9 sections of  West Virginia ATV Code §17F:

ARTICLE 1. REGULATION OF ALL-TERRAIN VEHICLES.
§17F-1-1. Acts prohibited by operator; penalties for violations.
§17F-1-2. Safety awareness courses.
§17F-1-3. Local government authority to regulate.
§17F-1-4. All-terrain vehicle rental dealers required to provide safety equipment.
§17F-1-5. Private property exemption.
§17F-1-6. Exemption for farm, commercial use; current regulations.
§17F-1-7. Applicability of rules of operation.
§17F-1-8. Criminal penalties.
§17F-1-9. Definition of all-terrain and utility terrain vehicle.

21. Everybody references orphan roads and HARP, what does HARP mean?

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:

HARP sign example

WV Orphan Road Program ended in 2001.

22. How many votes does it take to pass an amendment or the budget, etc. in an HOA?

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 governing documents are the same.

23. Our HOA pays for our subdivision’s street lights as part of our annual assessment budget, who do we contact at the electric company to complain about irregular billing and off-the-chart increases?

Concerns or complaints about First Energy [Potomac Edison] power company billing practices, you may file either an informal or formal complaint with the West Virginia Public Service Commission at: http://www.psc.state.wv.us

24. My property may be taken by eminent domain for a new highway and I’ve heard folks talking about a “Pro Tanto Award” – what is that?

Usually, after the government has determined that they will take your land via eminent domain, the government will appraise your property. They will then send you a notice with a pro tanto award. A pro tanto award is an offer on your property based on the appraisal. Some, not all people accept the pro tanto award, but you do not have to. You really must consult a real estate attorney to determine if you should accept or reject a pro tanto award.

25. What is a limited expense liability planned community?

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 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 July 2022 is $1,110.00

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.

26. Does the WV Uniform Common Interest Ownership Act 36B protect an Association with 12 homes or less?

Currently if an Association in WV has 12 units or less, only two sections of the Act apply (36B-1-106 and 107). See 36B-1-102.

27. Does the WV Uniform Common Interest Ownership Act 36B protect a limited expense liability planned community?

Only three sections apply (36B-1-105, 106 and 107). This is the exemption that most developers use to avoid consumer protections and restrictions of the Act. See 36B-1-203.

  • §36B-1-105. Separate titles and taxation.
  • §36B-1-106. Applicability of local ordinances, regulations and building codes.
  • §36B-1-107. Eminent domain.
  • §36B-1-203. Applicability to new common interest communities. — Exception for small and limited expense liability planned communities.
28. Disclosure from developers, real estate agents and others is a big concern of mine; I’m seriously considering purchasing a home in an association somewhere in the countryside of West Virginia – what disclosure rules/laws should I be aware of?

Chapter 36B has an entire section (Article) with detailed lists of items and documents that must be disclosed to purchasers. Unfortunately, many believe that section does not apply to limited expense liability communities. See Chapter 36B, Article 4; and 36B-1-203.

SELECT from the following:

ARTICLE 4. PROTECTION OF PURCHASERS 

 

  • §36B-1-203 . Applicability to new common interest communities. — Exception for small and limited expense liability planned communities.
29. I’m having trouble locating the WV website for 36B, can you help me?

Go to the website: https://www.wvlegislature.gov/
The following is an example – select for a larger image:

30. I just heard [July 2013] Charleston passed a bill that urban agriculture is permitted and I want to take advantage of saving money by collecting my own eggs, however my governing documents state “No ponies, chickens, goats, or foul of any kind shall be permitted on the premises” so does this mean I can or cannot have my chickens?

First, your governing documents have precedence – secondly, the Charleston Bill 7579 is specific to the city of Charleston, not the state of West Virginia.
select: Bill No. 7579 Amending the Zoning Ordinance for the City of Charleston for the complete text.
4 pages

31. I know that HOAs in West Virginia are governed by a lot of regulations, what exactly should I look for to understand the basic rights I could or should have?

 In addition to each unique set of governing documents, HOAs in WV are governed by the West Virginia Non-profit Corporation Act (Chapter 31E) and the Uniform Common Interest Ownership Act (Chapter 36B).

Chapter 31E is not HOA specific, and generally applies to all non-profit and not-for-profit entities in WV. (Incorporation and good standing issues are a separate topic.)

Chapter 36B is HOA specific, but many subdivisions do not fall under this statute. If a community in WV was created prior to the adoption of Chapter 36B, then the Act applies.

However, the Act does not override conflicting provisions in the governing documents of a preexisting Association. If there is a conflict, the governing documents of the Association take precedent. If a preexisting community changes their documents, then the changes must conform to the applicable section(s) of the Act. See 36B-1-204.

32. What is an optional service fee – does it include my HOA’s roads, school bus stops, mail box clusters and/or street signs?

Basically, if the expense is something that the members are entitled to, such as use of the roads and common areas, it is not optional.

If the expense is something that the Association chooses to provide, like trash service, but the Covenants do not require that service to be provided, then it is an optional user fee.

also see FAQ #25 limited expense liability planned community

33. Is there a cost for WVOHOA’s workshops, and can members of non-WVOHOA associations attend?

Registration is Required – Attendance is Free
ALL EDUCATION SESSIONS ARE OPEN TO THE PUBLIC
WVOHOA Membership is not required though encouraged.

WVOHOA’S Education Sessions are scheduled via ZOOM on the 3rd Wednesday of the month at 7PM –  January thru November.
There are no scheduled sessions in December In observance of the holidays.

34. Why do homeowners always complain they have to increase their annual budget assessments after the developer/declarant transfers the common areas to the homeowners?

The developer/declarant wears many hats, one of them is sales. When you purchase a home in an HOA it is important to the seller that you know there is a small annual assessment required of you as a member each year.

What you are NOT told in West Virginia is the true cost in relation to the long term, e.g. 20 – 30 – 40 years. Developers are not required to disclose that information to you, nor are they required to provide that information to local, county or state authorities. It becomes a guessing game of dollars and cents to the HOA.

So what does it cost annually to maintain your common areas? $100/homeowner, $300/homeowner, or more? It’s pure speculation without a a reserve study that includes a reserve plan. More often than not, no reserve study will be provided by the developer/declarant – the HOA must decide to be smart and pay (or do the leg-work) for a reserve study to learn what the projected costs are for maintenance of the common area, most importantly, roads. Sadly most HOAs limp along with band aid solutions for the long run so as to refrain from increasing the annual dues/assessments in support of maintaining their common areas.Maintenance is equal to the overall property value of the community in the long run.

It is the responsibility of the homeowners thru their Board of peers to provide the General Operating Expenses (monthly/year) & Capitol Expenses Deferred Maintenance (long term reserves) accounts, circulate that information and follow the detailed plan to a “T” – by setting up a budget HOAs will know and will expect the outcome each year. There are no secrets – it’s simply a fact of life in West Virginia HOAs.

35. This is so confusing – what are the differences between a policy a procedure and a resolution, let alone guidelines for HOAs?

  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. 

36. What is CAI?

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.

Community Associations Institute (CAI) WVOHOA Board of Directors with their Legislative Review Committee are members of CAI as well as many of our WVOHOA Members.

 

37. My neighbor mentioned anyone can make free calls to a bank of WV lawyers – is that true?

On Tuesday nights the WV State Bar operates the Tuesday Legal Connect. Volunteer lawyers take calls from the public, and offer suggestions and guidance about their questions. Every Tuesday evening from 6:00 p.m. to 8:00 p.m., lawyers volunteer their time to answer questions that are presented by men and women throughout West Virginia on a toll free telephone line. The lawyers listen to the citizens’ comments and questions. They help the callers assess:

  • Whether the caller really does have a legal problem.
  • Whether there are some simple steps the caller can take to try to solve their problem without a lawyer.
  • Whether the caller really does need to have a lawyer to help them.

 The volunteer lawyers can provide general legal information. But they cannot provide direct legal advice or legal assistance about your case. To give legal advice, a lawyer would need more information and details than a short telephone call can provide. To reach the Tuesday Legal Connect, call 1-800-642-3617

 West Virginia Online Legal Help allows eligible users to post a legal question to a private messaging system. The questions are answered by volunteer attorneys. Users of West Virginia Online Legal Help can check the system for answers at any time. All information posted is held in strict confidence.

West Virginia Online Legal Help is a project of the West Virginia State Bar. The website is administered by Legal Aid of West Virginia.

38. We are having serious issues in our association with homeowners and we just don’t understand the difference between negotiation, mediation or arbitration, can you please clarify this?

OK, do attend WVOHOA meetings, we have several HOAs who could share their experiences on this important subject and might provide information that would be helpful. Civility is mandatory in all instances.

To continue, you are referring to handling one or more conflict resolutions, this is also known as Alternative Dispute Resolution (ADR), which includes negotiation, mediation and arbitration. It provides HOAs with a means to resolve conflict more quickly, economically and sometimes more fairly than the traditional justice system.

  • Negotiation is the first step in conflict resolution. It allows associations to work independently, requires the least amount of time and resources and does not require assistance from a professional mediator or attorney.
  • Mediation is an informal, cooperative, problem-solving approach to conflict resolution. It relies on a trained third person (who has no personal stake in the outcome) to facilitate the negotiation. The mediator ensures constructive interchange between people and won’t allow the parties to stoop to adversarial posturing or name-calling. Mediated settlement agreements are created by the parties involved and aren’t legally binding unless formalized by contract or court order.
  • Arbitration is a formal, rule-oriented process that is more expensive and takes more time than mediation, but less than a court case. In arbitration, a neutral party renders a legal decision based on evidence and testimony and makes a final award in favor of one party. The arbitrator’s office is quasi-judicial in nature, making final awards enforceable in court.

The full explanation of this answer is provided by Community Associations Institute –ATTACHED for your convenience and continued reference.

39. What’s the difference between a regular board meeting, a members meeting, a special meeting, a committee meeting and an annual meeting?

Regular Board Meeting usually monthly, bi-monthly and in some cases quarterly or every 6 months. Depends on the size and number of activities of your association. Your Board of Directors meet to handle the business of the association. You elected them from among your peers. As a member you must be provided with date, time and location so you can attend these meetings. Typically these meetings are for the Board (your peers) to make certain they are completing required time-sensitive fiduciary responsibilities governing your association.

Annual Meeting is exactly that – once a year, typically outlined in your governing documents and certainly required by WV Law. Some HOA’s may call this meeting a Members Meeting, try not to be confused. The Annual Meeting must be advertised with date, time and location, too and including an agenda with a proposed budget for ratification, and a proxy in formal form. At the Annual Meeting it is required to record & certify proxy forms (they are counted toward a quorum), take written attendance, and the Board of Directors must present proof of notice. You are encouraged to attend the Annual Meeting. It is a corporation meeting of ALL MEMBERS once a year. If you cannot attend you should complete the proxy and transfer your right to vote to another (typically, another owner of record in your community) at this meeting.

Special Meeting is a formal activity for emergencies, you must be provided with date, time and location as soon as possible and you are encouraged to attend. An emergency situation may involve a one-time assessment increase of a sizable amount of money that must be obtained immediately. This is usually due to a major expense not outlined on an approved budget. It is a one-time one-issue vote of the members.

Committee Meeting is a relaxed activity for a committee that has been delegated with a specific task by the Board of Directors and does NOT require advertising date, time and location to the full membership of the association. The committee meets when they agree to their own convenient time, date and place. They are responsible to carry out a specific task and report back to the Board of Directors. A committee is usually made up of 3 or 5 members. Some examples could be a policy committee, a website committee, a landscaping committee, or perhaps an architectural review or newsletter committee. There can be many types of committees in an association depending upon need.

Members’ Meeting might be an informal gathering of two or more members that does not necessarily require advertising date, time and location to the full membership. Often members simply get together and discuss issues that they may decide to present to their Board of Directors. It is a relaxed environment and information is openly shared with those in attendance. It would be a good exercise to preserve notes or minutes of this type of meeting for future reference. There are no votes required at this type of meeting.

40. Do you have any information about Maryland’s HOA assessments??

We do have a flier from Montgomery County, MD’s Commission on Common Ownership Communities(CCOC)
The flier contains several questions and answers specific to assessments. ATTACHED

41. I’m a voting member of my HOA and at the Board meetings they won’t let me vote – can they do that?

Purchasers in an HOA are automatically members AND they carry a vote; typically one vote one lot. However, you vote at your Annual and Special Meetings, they are the meeting of members.

As a voting member, not on the Board (you voted from your peers at the Annual Meeting to elect your directors to handle the business of the association) you do NOT vote at a regularly scheduled Board meeting.

A regularly scheduled Board meeting is specifically for the Directors to handle the business of the association during the fiscal year. The business of the association is the mandate your Board must follow by respecting the fiduciary requirements of your Declaration of Covenants, Conditions and Restrictions as well as your Bylaws and other guidelines, policy, resolutions and line item(s) of your approved budget.

EXAMPLE STEPS:

1.) at the Annual Meeting members voted to obtain a snow plowing contract not to exceed $10,000 dollars for that fiscal year.

2.) at the regularly scheduled Board Meeting the officers voted to circulate a bid for proposals, the proposals arrived, the officers reviewed them, the officers voted to choose one contractor. Thus, they’ve satisfied the members’ vote by obtaining a snow plow contract – by handling the business of the association.

also see FAQ# 13, 15 and 17.

42. What’s the difference between a director and an officer for my HOA?

Board members, directors, officers, executive directors, directors at large are typically rolled up into one package. They handle the business of the association. Together they carry the same weight at regularly scheduled board meetings.

FACT:

  • The directors serve at the pleasure of the members.
  • The officers serve at the pleasure of the directors.
  • Most if not all HOA governing documents outline actions of the directors and/or officers

EXAMPLE:

1.) During the Annual Meeting homeowners nominate from their peers to be considered for the board,
2.) ballots are passed out to those in attendance, some may have proxy votes from homeowners who could not attend,
3.) ballots are collected and the votes are counted,
4.) highest vote = a board member, then
5.) the newly elected board meets (usually at a later date) and they then elect their officers.

Executive Board constitutes the basic officer positions of:

  • President
  • Vice President
  • Treasurer
  • Secretary, and
  • remaining number of board members – aka Directors at Large
43. What actually is “servitude”?

In a nut shell, when you purchased your home within a homeowners association you were automatically included as a voting member of that association. You voluntarily accepted the documents during settlement.

With that membership you agreed to follow the governing documents, e.g. Declaration of Covenants, Conditions & Restrictions, Bylaws, policy, resolution and other guidelines of the association. The governing documents are THE association’s commandments you must follow. It is imperative homeowners read and understand governing documents.

TIP: not all governing documents are identical for all homeowner associations.

Definition of SERVITUDE in a homeowners association:

  • A servitude is a legal device that creates a right or an obligation that runs with the land or an interest in land.
  • A real-estate development or neighborhood in which individually owned lots or units are burdened by a servitude that imposes an obligation that cannot be avoided by non-use or withdrawal.
  • The recorded document or documents containing the servitudes that create and govern the common-interest community; e.g. you the homeowner.
44. I rent a home from an owner in the HOA, can I attend the HOA meetings?

Depends on your 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 community’s website, bulletin boards and newsletters, stay current.

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

45. Is there a popular site for HOA news or information that may not necessarily be published in local papers for HOAs in West Virginia?

WVOHOA’s website is well known and somewhat popular, however you might try:

46. I just moved into an HOA and got elected as president at the Annual Meeting – I’ve never lived in an HOA or been an officer for any organization. Do you have any information to help me get started?

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. 

47. Can the HOA Board have married couples? The Director and Treasurer are married. Also, two of the other Directors are married.

Depends on your governing documents. If your governing documents do not prohibit married/unmarried couples serving on the Board, it is best to have an internal policy or resolution against it to avoid the appearance of impropriety and potential conflicts of interest. With that said HOAs often struggle attracting volunteers to run for and be elected to the board.

In the event a couple is elected to the board from the same home/lot, Board votes should not be confused with membership votes. Each Board member (married or not) typically has one vote on any Board business. When it comes to general membership business, like annual meetings and elections, married couples typically get only one vote because their right to vote is linked to the one lot they own.  Again, read and understand your governing documents.

48. My HOA was dissolved in 2008 by the West Virginia Secretary of State for failure to file annual reports and pay annual fees. For the last 5 years I get demand letters for money from the so called HOA but no name or signature. Now I get a letter that states “we will put a lien on your property if you don’t pay”. Why should this HOA have any right to demand anything if it was dissolved?

You have two very different requirements embedded in your question;
(1.) WV Secretary of State
(2.) HOA Annual Assessment

Both points are required. The WV Secretary of State is required because HOAs are a business corporation . All WV HOAs must file every year no later than 5PM on the last day of June. When that filing does not happen the WV Secretary of State revokes the business corporation but NOT the HOA’s governing documents’ restrictions that run with the land that you must respect.

Your governing documents outline the annual assessment in order to maintain the common areas; the amenities that you enjoy while increasing property values. That assessment is required. That assessment is a contract you agreed to when you purchased your home/lot.

TIP: after the annual budget has been ratified by the members, typically an HOA invoice should contain the following basics:

  • the name and address of the HOA
  • the name and contact information of the treasurer
    (or other official generating the invoice)
  • the fiscal year total amount for the annual assessment
    (general operating and capital expense reserve accounts totals)
  • the date the assessment is due
  • the location where the annual assessment payment is to be made
  • the policy statement and/or cited reference for delinquency after the annual assessment due date

TIP: WV Code §36B-3-116. Lien for assessments.
(d) 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.

49. My HOA won’t let me fly my flag – can they do that??

As far as the United States flag – HOAs CANNOT PROHIBIT FLYING THE US FLAG. Federal Law supersedes your governing documents.

For your reference: Freedom to Display the American Flag Act of 2005 . Public Law 109-243, 109th Congress

TIP: your HOA may have guidelines that are specific to flag & pole sizes & locations.

50. When a homeowner in our HOA has not paid their assessment we considered them NOT in good standing – can they still vote at the Annual Meeting?

WV Code §31E does not allow for disenfranchising a member (i.e., not allowing them to vote). State laws supersede the HOA’s governing documents. This issue has not been addressed by the WV Supreme Court and it was suggested that to be safe not to disenfranchise members of your HOA. It was also suggested that your bylaws require all Board members and officers to be in good standing.  Note that WV Code 31E implies that unincorporated organizations also must follow the code.

§31E-7-721. Members’ voting rights.
(a) Unless the articles of incorporation provide otherwise, each member, regardless of class, is entitled to one vote on each matter voted on at a meeting of members. Voting rights of members of any class may be increased, limited or denied by the articles of incorporation.

(b) Members otherwise entitled to vote, but disqualified from voting for any reason, may not be considered for the purpose of a quorum or of computing the voting power of the corporation or of members of any class.

(c) A corporate member’s vote may be cast by the president of the member corporation or by any other officer of the corporation in the absence of express notice of the designation of some other person by the board of directors or bylaws of the member corporation.

51. I just learned the WV Attorney General’s representative said we can’t file a complaint as an HOA Board against a homeowner in our subdivision – how come?

The short answer is an HOA is not a person, a human.

Consumers – e.g. a humans – who believe that they have been the victim of unlawful practices in the purchases of goods and services may submit a complaint.
Contact: WV Attorney General

52. What is the difference between a lien and a super lien in an HOA?

LIEN: an HOA Board may file a formal document thru their county clerk’s office on an owners property when there is a verifiable violation of the governing documents including delinquency of an owner’s contractual annual assessment, e.g. dues. Typically, the owner ignores all contact, warnings, hearings and pleadings from their respective HOA Board of Directors. This lien can only be released after payment is made by the owner to their respective HOA. The amount differs depending on a fine/penalty schedule the HOA has in place and the cost of filing with the county clerk, too and including the basic envelope, postage, and most likely attorney fees that may develop due to difficulty in correctly filing an initial lien.

SUPER LIEN: same scenario as above except it goes to the next level of enforcement when an HOA Board forecloses on an owner’s property. West Virginia law, §36B-3-116. Lien for Assessments and Code §38.LIENS, supports HOA priority over first mortgage holders in this process. Thus, an HOA may recover an assessment. Do not take this action lightly – use of legal council is strongly encouraged.

We’ve done a bit of research to respond to the SUPER LIEN explanation – read layman’s language Mortgage Servicers’ Latest Troubles: Homeowners Association Fees by Kate Berry July 2011, and you might consider Matt Martin quoted in the article, he’s the CEO of Matt Martin Real Estate, in Arlington, Va., who established Sperlonga Data and Analytics LLC as a free service for HOAs to enable them to input documents into a portal and have the information sent directly to the servicer.

At no cost, Homeowner Associations, Condo Associations, Cooperatives, and other types of Community Associations may register their communities at SperlongaSM. This data is used to quickly connect lenders and mortgage servicers with the associations in order to facilitate prompt resolution of delinquent association fees and to ensure all accounts are kept current.

WVOHOA does not endorse or recommend legal counsel or businesses. WVOHOA is not affiliated with any political party.

53. I’m concerned about fracking in my neighborhood, what is the law if oil is discovered on my property, my land in West Virginia?

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

2015-0101_FrackTrackeTn

54. I know WVOHOA cannot provide legal counsel or recommend an attorney for us, so how do I locate a lawyer for my HOA in West Virginia?

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

55. Can WVOHOA provide the meeting dates to my HOA Board for a full year?

Certainly, there are several ways to do this.

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

56. I’ve been told my DCCR is simply an act of copy/paste from Virginia or Maryland DCCRs, is that true, is there a template developers’ lawyers used to produce the text for our HOA?

It goes farther than just Virginia and Maryland, the suggested legal documents that developers’ lawyers may use is at the federal level.
SUGGESTED LEGAL DOCUMENTS FOR PLANNED-UNIT DEVELOPMENTS
FHA Form 1400, VA Form 26-8200, Rev. October 1973.

“These legal documents for planned-unit developments were prepared by the Federal Housing Administration and the Veterans Administration for nationwide use.”

Legal Opinion: CIS-0091 – HUD [FHA FORM 1400]
Changes to HUD’s Process for Approval of Condominium and Planned Unit Development (PUD) Projects  September 23, 1996

57. My HOA wanted to print this page for reference but only the questions print – is there a way to print both the questions and the answers?

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

58. We bought a pretty shed and had it placed in our backyard. Now our HOA says we are in violation and we have to tear it down. Can they really do that?

To be in compliant with your governing documents you agreed to follow is paramount. Typically a homeowner follows those documents which outline permissible structures such as a shed if they are allowed at all. The following steps must be taken:

Ask your HOA if you can install a shed. They will review the governing documents specifically for sheds. If the answer is no, then it’s simply no and you do not install a shed. If the answer is yes be prepared to provide the dimensions and location preferably on a sketch of your plat. (sheds are also known as: outbuilding, workshop, bike storage, boat building, shack, outbuilding, storage building, tool building, lawn/yard storage building, pool building or cabana, barn, etc.)

Some, not all, governing documents in HOAs are specific to a structure’s materials, color, height, foundation, utilities, relative placement due to the proximity of a well or septic and may require a county permit. Governing documents may contain a clause that a shed must be a stand-alone structure or an attached structure to the home itself, or even an open wall structure. Some governing documents may state the number of windows, size of a door and possibly the number of stories (levels). You might also be asked if you are planning on storing explosive or corrosive materials in the shed due to restrictions in the governing documents.

The bottom line:
ASK before you do any structural changes/additions to be in compliance with the governing documents you agreed to follow when you purchased your home in an HOA. When ignoring your responsibility to follow your governing documents, then yes, you may be required to tear down your shed at your expense.

SEMANTICS: A rose is a rose is a rose – the meaning most often attributed to this is the notion that when all is said and done, a thing is what it is. Governing documents typically spell it out, though many times the name of a thing is obscure and left to the reader to define, ergo – policy could be considered AND with a majority vote.

59. Really? Can drones be used in our HOA to spot violations?

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!

WV Code §61-16-1 and §61-16-2 USE OF UNMANNED AERIAL VEHICLE 

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

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

WV ARTICLE 16. USE OF UNMANNED AERIAL VEHICLE  WV House Bill 3479 Passed March 9, 2023; in effect ninety days from passage

60. I am a member of Community Associations Institute (CAI) and my HOA has found this organization to be very helpful. Is WVOHOA considering membership?

On July 15, 2015 WVOHOA’s Board of Directors unanimously voted to join CAI and renews their CAI membership annually.

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

61. In our HOA we have a homeowner who applied to the county zoning board for a Bed and Breakfast and they may be approved, however our governing documents are specific “residential use only”. Can the homeowner still convert their home to a B&B?

Your governing documents are only as strong as your Board of Directors’ leadership is on your behalf, which is to say a pro-active HOA will enforce covenant restrictions of the governing documents. For example:

SECTION 4A.6 PRIVATE COVENANTS RUNNING WITH THE LAND
Jefferson County shall not enforce or become involved in the enforcement of deed restrictions, covenants, easements, or any other private agreement, and, in the review of development proposals, the County will apply only its regulations to evaluate the proposal. All such restrictions shall be enforced by the parties to the restriction. It is the responsibility of an applicant for a proposed Cottage Industry or Home Occupation to research any private agreements relating to the subject property, contact the Homeowners’ Association, or seek the advice of a surveyor, engineer or attorney. Source:  Jefferson County Ordinance 2014

TIP: open communication and transparency is key to success in any HOA – your HOA should be pro-active and encourage all their members to contact their Board of Directors prior to applying for any change that may/would be considered a violation of their governing documents – basically it is contract law – a homeowner accepted and agreed to abide by the governing documents, e.g. restrictions that run with the land, at the time of settlement. Without being pro-active, eventually your HOA will most likely seek legal counsel after-the-fact at great expense to all member homeowners and/or your HOA insurance.

62. We have a maximum limit on our annual assessments and we are trying to increase it over the $300, can somebody please tell me what is the CPI ?

You’ve asked a very popular question! We will assume your HOA is a limited expense liability planned community which contains a requirement to follow WV Code §36B-1-114.

Consumer Price Index (CPI) data is provided by the U.S. Department of Labor, Bureau of Labor Statistic.

WVOHOA had an important presentation that included a practice budget using an excel spreadsheet. You might try playing around with your assessment figures and see how your annual dues might increase: PRACTICE BUDGET SPREADSHEET. Modify ONLY white cells in the spreadsheet. 

You might try the US Inflation Calculator – measures the buying power of the U.S. dollar over time. Just enter any two years between 1913 and now, a unique amount, then select ‘Calculate’.

importantMOST IMPORTANT: Due to the complexity of the formula in WV Code §36B-1-114 be careful, a certified public accountant, attorney or similar professional can aid you in calculating the adjustment.
(by 2022 the $300 Cap “as adjusted” would be about $1,010.00)

  • WVOHOA is not responsible for broken and/or expired links.
  • The information found on the practice budget spreadsheet is intended to be used as a practice tool. No liability is assumed for the accuracy of the data presented or implied. Not responsible for results.

also see FAQ #25, 26, 27 and 130

63. I was elected during our annual meeting but I am not clear how officers are elected. The previous officers were also elected again and I was told by the then president they discussed the officer positions they’ve agreed to remain in those positions. I was not included in that discussion. My question is how do I become an officer?

To answer your popular question we will assume your HOA is compliant with all or parts of WV Codes §31E, WV Code §36B and your governing documents.

Here are the customary steps: (typical example)
1.) During the Annual Meeting a list of nominees are announced and in some cases nominations from the floor are included.
2.) Nominees are then individually introduced; they express their reason(s) to be elected to the Board of Directors.
3.) Voting commences, winners are announced.
4.) The HOA then has a brand new Board of Directors with staggered terms.
5.) Depending on your governing documents, within a few days the new Board of Directors must meet and among themselves elect their Officers. (typical example)

  • President
  • Vice President
  • Treasurer
  • Secretary and
  • other elected director(s) as member(s) at large or another defined title of position

This meeting, as well as any meeting of the Board, is open to all members of the HOA.

6.) The HOA then has its fiscal year slate of Officers and those names, positions and contact information are circulated to all members of the association.

Members of the HOA must remember:

  • The Board of Directors serve at the pleasure of the homeowners.
  • The Officers serve at the pleasure of the Board of Directors.
64. One of our homeowners is on our Board and not well liked by our Board and some other homeowners in our community. Our Board made a motion and unanimously voted to remove this person from the Board and forever being elected in the future, can they really do that?

While some, not all, governing documents contain a definition concerning members in good standing may cast a vote, we are unaware of HOA rules, regulations and laws preventing the entire membership of any HOA from voting for or against a homeowner based solely upon liking or not liking one or more homeowners by a Board of Directors or Officers of that Board. It is best to seek mediation, arbitration, and/or legal counsel in this instance. WVOHOA does not provide legal counsel.

Be sure you review West Virginia §31E-8-809. Removal of directors by members or directors, and §31E-8-810. Removal of directors by judicial proceeding.

FACT: open communication and transparency is key to success in any HOA.

65. Our HOA budget has a line item for potential fines levied on delinquent homeowners if they pay their annual dues late so our budget looks healthier. Some of our homeowners argue that this is wrong – is it wrong?

You cannot count  “pie-in-the-sky income based upon fines”, 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 …

66. Can our developer, he’s also the declarant, really own property in our HOA and not have to pay the annual assessment?

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.

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

67. What are the requirements for an HOA reserve study in West Virginia? I can’t find anything in my governing documents.

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 or include a plan to cover the reserves.

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

68. Our HOA received notice for delinquent tax owed by the developer on our common area and we were told if it wasn’t paid our common area would be sold at a tax auction – can our common area really be sold because of delinquent tax?

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.

Also review: Taxation of Homeowners’ Associations & Common Interest Communities TSD-318

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 onto new board members – transparency is key to success.

Contact:
Attorney for WV State Tax Commissioner, Office of Tax Appeals
1012 Kanawha Blvd. E., Suite 300
Charleston, WV 25301
Tel.: (304) 558-1666
Fax: (304) 558-1670
Email: wvota@wv.gov

69. My HOA Board says that if we join WVOHOA we must follow your Bylaws and not ours, is that really true?

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 for the Board of Directors to administer the business of the corporation, organization or association.

70. What does fiduciary responsibilities really mean?

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.

71. My HOA has been reviewing our governing documents and a section contains a private transfer fee, our Board of Directors wants to know what that is, can you help us?

In 2012 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 RegisterPrivate Transfer Fees – Final Rule
RIN-2590-AA41
Fannie Mae; FHLBanks; Freddie Mac
12 CFR 1228
Federal Register Citation: 77 FR 15566
Authority: 12 U.S.C. 4511, 4513, 4526, 4616, 4617, 4631.

72. Because our HOA stopped doing the WV Secretary of State’s annual report, does our FEIN number go away, and do we need to file for a new one?

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.

U.S. Internal Revenue Service (IRS)

73. Our HOA treasurer said WVOHOA is a federal government agency – is that true?

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

74. My HOA comes to my door over and over demanding I pay the annual assessment, I am tired of them coming over to my house, do you know how to stop them?

uh oh – they cannot come a’ knock’in over and over, it’s blatant 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 voluntarily 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.

75. What’s the big deal about hearings in an HOA?

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 another type of covenant violation regarding an  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 be heard, 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.

76. We are a limited expense liability HOA and have been considering writing to our senator to get WV Code 36B amended and we need someone to help us prioritize our list, can WVOHOA help us?

YES – participating with WVOHOA is a proactive step – helping HOAs is exactly what WVOHOA does when we all share information to increase knowledge! The list is extensive, review:

2021 Recommended Amendments 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 recommendations since 1994.

for consideration:

  • Close the WV 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 consumer protections.
  • Require the declarant/developer to disclose detailed common area capital reserve expense and proposed planning related to 10, 20 and 30 year life expectancy.
  • Require full HOA disclosure (not just an an owner’s home disclosure of condition) to be provided to purchasers.
  • Require settlement attorneys to provide purchasers information concerning rights, responsibilities, and obligations of HOAs (not just the standard PUD paragraph that purchasers initial).
77. My HOA Board says we don’t need E&O insurance, what is that exactly?

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
78. What are some of the comments/questions asked of WVOHOA at the home show?

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.

79. Why does any HOA need Board of Director insurance?

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

80. I need something different & challenging to interest my board, any suggestions??

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

EPOHOA Crossword WVOHOA Word Search Leadership

81. Do HOAs have to pay tax on their saved capital expense account each year?

Under 26 U.S. 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.

26 United States Code
Subchapter F – Exempt Organizations
PART VII – CERTAIN HOMEOWNERS ASSOCIATIONS
From the U.S. Government Publishing Office, www.gpo.gov

82. I am a committee representative for our HOA, do I have to provide a report to the HOA Board of Directors?

Typically all committees should/must maintain and publish notice of their actions to unit Owners through 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!

83. My HOA says we must have a fidelity bond, really?

Fidelity Bond –
Fidelity insurance requirements protect the association’s 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/

84. Our HOA is confused about which court to choose for delinquent assessments – magistrate or civil?

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 $10,000 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 $7,500. Civil cases usually involve private property rights, not criminal activity.

cases for each county in West Virginia, in the year of 2022
Courtesy West Virginia Judiciary

85. What are the statute of limitations for assessment delinquencies in an HOA?

WV 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.

WV 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

86. What are the most important points to begin writing a proposed amendment to our WV Legislators for our suggested text for 36B?

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:

WV Code §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.

87. I live in an HOA in Berkeley County and there’s a lot of low flying military planes over my house, do you have any information about them?

YES – Colonel Shaun J. Perkowski, Wing Commander of the 167th Airlift Wing was one of our Organization’s guest speakers 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?
88. Our HOA is considering a community fireworks display, are there any HOA requirements?

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.

89. Are HOAs bound by the WV Open Meetings Act?

Read your governing documents – in WV some are some are not.

HOAs are not a public agency – HOAs are individual quasi-governmental type agencies and all members of the HOA retain their attendance rights to attend all scheduled meetings with the exception of executive session and confidential hearings. 

HOA meetings are understood to be “open meetings” within their individual community.

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

TIP: planned communities want their homeowner members, their public, to be just as informed about the actions of their Board of Directors on their behalf and retain control over them as well.

90. What is the minimum notification for a board meeting?

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 are included within the full intent of WV Code §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

91. My HOA is concerned about optional insurance coverage, can you help us? Is there anything on sinkholes?

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

92. HELP – I’m looking for how to handle delinquent assessments, I remember WVOHOA had a workshop on collecting delinquent assessments – did WVOHOA record what the lawyers went over?

WVOHOA retained related information and what you may be looking for is: consumer protection and what you cannot do under federal law: Fair Debt Collection Practices Public Law 111-203, title X, 124

Fleet v. Webber Springs Owners Ass’n, Inc., No. 14-0637
(W. Va. Apr. 23, 2015). WV Supreme Court of Appeals

The court determined that homeowners association assessments that are to be used for improving and/or maintaining common areas of a planned community… are an obligation primarily for personal, family, or household purposes, and, therefore, such assessments are ‘claims’ pursuant to WV Code §46A-2-122(b)(1996).

WV amended 46A-2-122(b) with WV Senate Bill 563 April 5,  2017
in effect 90 days from passage.

REMEMBER: planned community purchasers agreed to and signed a consensual lien, e.g. a voluntary promise to pay their assessments.

93. How do I log into the protected areas of the WVOHOA website – where do I get a password?

Your WVOHOA membership for the current year must be in good standing.
Contact membership@wvohoa.org for a 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 with videos, including archives, court of law and homeowner documents.

94. My HOA annual assessment keeps going up and I want to know how much it will really cost to maintain my HOA?

First – it appears you have a Board of Directors that have knowledge and understanding by looking out for your overall property values and increasing your annual assessment each year which is good!

Second – the real cost to maintain and sustain your community’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 and plan (annual increases are included within a plan)

Unfortunately there is no WV disclosure law, at this writing [2023], requiring a declarant/developer to provide that critical information for you. The responsibility rests entirely on the shoulders of your Board of Directors.

Consider 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 has a reasonable and good faith belief that the maximum stated assessment will be sufficient to pay the expenses of the planned community…

You could also request previous records from your Board of Directors. WVOHOA  published several helpful tips: ALL YOU HAVE TO DO IS ASKnot a definitive list

also see FAQ #62

95. How long can my HOA last?

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

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

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

96. We are having trouble locating CHAPTER 129 when reading Chapter 36B-1-201, can you help?

Chapter 129 is included within the ACTS OF THE LEGISLATURE and archived by the year, currently 1863 through the 2020s. The following explanation relates only to §36B-1-201.

for WV Code §36B-1-201 the Acts of the legislature in 1963-1964 Vol. 1 Chapter is 53 [page 174] as amended, increasing benefits in the state teachers’ retirement system does not apply to common interest communities after the effective date of this chapter [Passed March 4, 1963; in effect July 1, 1963. Approved by the Governor.]

TIP: Chapter 53 should have been stated Chapter 153:

for WV Code §36B-1-201 the Acts of the legislature in 1963-1964 Vol. 1 Chapter is 153 [page 712] adding thereto a new chapter, designated chapter thirty-six-a, relating to the ownership of real property… does not apply to common interest communities after the effective date of this chapter [Passed March 7, 1963; In effect ninety days from passage. Approved by the Governor.]

for WV Code §36B-1-201 the Acts of the legislature in 1980 Vol. 1 Chapter is 129 [page 654] adding thereto a new chapter, designated chapter thirty-six-b, relating to the enactment of the uniform condominium act does not apply to common interest communities after the effective date of this chapter [Passed February 6, 1980; in effect July I, 1980. Approved by the Governor.]

for WV Code §36B-1-201 the Acts of the legislature in 1984 Vol. 1 Chapter is 38 [page 238] as amended, relating to the uniform condominium act does not apply to common interest communities after the effective date of this chapter [Passed March 7, 1984; in effect ninety days from passage. Approved by the Governor.]


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

As stated previously, the language highlighted chapter one hundred twenty-nine [§129], acts of the Legislature, one thousand nine hundred eighty [1980], typo – repealed? 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.

  • Acts 1986,  Chapter 164 [page 1136] as amended, be amended and reenacted relating to the Uniform Common Interest Ownership Act [Passed March 8, 1986; in effect July I, 1986. Approved by the Governor.]
  • Acts 1984 Chapter 38 [page 238] as amended, be amended and reenacted to 36B Uniform Condominium Act [Passed March 7, 1984; in effect ninety days from passage. Approved by the Governor.]
    Acts 1980,  Chapter 129 [page 654]  by adding thereto a new chapter, designated chapter 36B Uniform Condominium Act [Passed February 6, 1980; in effect July I, 1980. Approved by the Governor.]
97. My HOA is not participating correctly with a couple of disabled homeowners – do you have any information that would convince my HOA to back off?

There are certainly situations when volunteer homeowners are in positions of authority and need assistance with definitions & decision making – for example two of the most important disability considerations are:
    1.) All HOAs should review whether their current insurance policies include coverage for fair housing claims.
   2.) All HOAs must ask themselves what constitutes a “reasonable” accommodation.

Always consult: The AMERICANS WITH DISABILITY ACT – a Federal law that supersedes your community’s  governing documents. We’ve also included a published Newsletter for consideration while making related  decisions;  courtesy of Community Associations Institute (CAI) & Rees Broom, Inc. – Attorneys at Law.

98. Can my HOA refuse solar panels on my roof?

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’ Board of Directors and their 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.)

99. My HOA continues to use their actions on homeowner property citing an “emergency”. What exactly is an emergency in my HOA?

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

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“.

WV Code §31E-8-821 Action without meeting. – an emergency for action, e.g. vote and it must be unanimous

(a) Unless the articles of incorporation or bylaws provide otherwise, action required or permitted by this chapter to be taken at a board of directors’ meeting may be taken without a meeting if the action is taken by all members of the board. The action must be evidenced by one or more written consents describing the action taken, signed by each director, and included in the minutes or filed with the corporate records reflecting the action taken.
(b) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.
(c) A consent signed under this section has the effect of a meeting vote and may be described as having the effect of a meeting vote in any document.

 

100. Do you have any examples of guidelines for solar panels?

Solar Panels & Solar Energy Systems
This is an example for communities to consider what others have accomplished to develop guidelines for solar installation. West Virginia law, at this writing, is silent concerning a planned community’s reasonable restrictions or prohibitions outlining guidelines for solar installation.

Review: http://findhoalaw.com/solar-panels-solar-energy-systems

This document link is a reference  – a model for content development for a planned community’s solar installation restrictions.

 

 

101. I need to get to the bottom of this: who elects who and who serves who in my HOA?

OK – lets outline this in the simplest way.

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

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

102. My HOA documents state my house’s paint must be an earth tone. What color is earth tone?
  • 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 to, at least two reasonable but conflicting interpretations or meanings.

103. Do you have anything on West Virginia HOAs?

WVOHOA’s Board of Directors is a member of Community Associations Institute. We’ve provided CAI’s 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 National Uniform Law Commission (2021 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.

104. I’m exhausted trying to figure out what my governing documents are, which one to follow, it’s a mess, can you help me understand?

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:

  • §31E. WEST VIRGINIA NONPROFIT CORPORATION ACT
  • §36A. CONDOMINIUMS AND UNIT PROPERTY ACT
  • §36B. UNIFORM COMMON INTEREST OWNERSHIP ACT [HOAs]

(TIP: not a definitive list though many laws relative to  HOAs in our state are listed within our website at: https://wvohoa.org/library/legislation)

2. West Virginia Secretary of State:

  • Certificate of Incorporation
  • Articles of Incorporation
  • Supplemental Amendments

3. Your County Recording Offices:

  • the 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.

105. If we are Section 36(b) exempt, does the law require us to have a Capital Property Reserve Fund?

Due to developer/declarant choices to exempt certain HOAs from all but 3 sections  (1-105, 1-106 and 1-107) of 36B-1-203 –  that exemption causes the greatest 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 – NO statutory requirement to fund reserves in West Virginia.

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

106. I keep calling the management company for our HOA about things I see in my community that are not taken care of – what’s the deal?

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.

107. Isn’t it true that I don’t have to join my HOA membership because it’s voluntary?

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

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

108. Is there a rule about my neighbor’s overwhelming outdoor hoarding?

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.

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)

109. My HOA says because we are not covered by WV §36B we don’t have to keep minutes, is that true?

WV requires non profit corporations 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.

WV requires business corporations to be in compliance with §31D WEST VIRGINIA BUSINESS CORPORATION ACT, therefore:

  • §31D-16-1601. Corporate records.
    (a) A corporation shall keep as permanent records minutes of all meetings of its shareholders and board of directors, a record of all actions taken by the shareholders 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.
110. Can our HOA director, our Treasurer, be hired to do our common area landscaping just because they have a their own landscaping company?

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.

111. One of our homes in our HOA was up for sale on the court house steps due to delinquent real estate tax but no person bought it, the state now owns it; who pays our required annual assessment then?

The responsibility for payment of the annual assessment rests upon 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

112. My new HOA Board of Directors said our old Board never filed federal tax, so they won’t either, is that true?

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.  Form 1120-H 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

113. Our HOA is having difficulty in the “business purpose code” we are supposed to use in our WV SOS form, can you help?

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

2022 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.

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.

NOTICE: WV SOS DOES NOT ENFORCE OR RESPOND TO HOMEOWNER ISSUES RELATED TO:
• restrictions that run with the land
• homeowner covenants
• assessments and penalties
• budgets and banking
• land disputes and easement regulations
• public utilities, septic systems, water wells
• solar, wind
• domestic/farm animals
WV SOS requires ONE ACTION of the association’s fiduciary:
• annual filing of the association doing business in the state

114. Why are WV HOA’s required to file every year with the WV Secretary of State?

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

115. My HOA won’t do anything! Can the authorities take my home in my HOA without paying me because my renter was arrested for growing marijuana in the basement ?

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:

116. Our HOA Board circulated new rules that are not in our governing documents, can they do that?

 “Unless otherwise provided in the governing documents” your Board of Directors has the authority using  reasonableness to establish policy, rules, guidelines and most likely procedures within the 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 a required driveway include the length or width of the driveway?

Does a required driveway material include cement or blacktop or perhaps gravel?

117. What’s the definition of NUISANCE in an HOA?

Ahhhh rubber words are ambiguous, for example “nuisance” and it’s always a challenge to a planned community’s Board of Directors to define.

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

118. Could you change the “individual membership” to a “family membership”? If two people in a family want to be members it would cost more than a 50 member HOA.

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

119. My HOA says they follow the business judgement rule, what exactly is that?

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, UCIO Bill of Rights

120. How do I know if our HOA is covered by WV Code 36B?

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:

Flow Chart WV Code 36B Applicability

 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.

121. What is a consensual common law lien that my HOA’s lawyer keeps referring to?

The West Virginia Supreme Court of Appeals recognizes a lien [HOA assessment] of that nature is a “consensual common law lien

The plain language of WV Code §36B-3-116(f) (1986) (Repl. Vol. 2005) requires a judgment or decree in any action brought under WV Code §36B-3-116(f) to include an award of costs and reasonable attorney’s fees for the prevailing party. The WV Consumer Credit and Protection Act §46A-1-105(3) as amended does not apply to an HOA’s “consensual common law lien”, however §46A-2 outlines prohibited conduct.

Remember, you promised to pay the assessment – you consented, it’s a consensual common law lien.

122. Is WVOHOA a 501(c)(3) or a 501(c)(4)?

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 does not endorse legal counsel, businesses and we are not affiliated with any political parties.WVOHOA does not provide legal advice.

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

123. When was the WV orphan road program stopped?

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.

additionally:
Orphan roads, a problem in search of a solution

by Brooks McCabe, The State Journal 2018

about the author: Brooks McCabe has been active in commercial real estate for 35 years. He is a former 16-year state senator from Kanawha County and special project consultant to The State Journal on business and economic development issues.

124. I am on my HOA board, so how do I find out who is a member of our HOA?

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 annual 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…”

125. My HOA Board won’t let me see the minutes, can they do that?

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 and §36B 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
  • Approved 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

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

additionally:

All You Have To Do Is Ask
by WVOHOA 2023

126. I bought my home in a limited expense HOA because my annual assessment was frozen at $300/year, so can my HOA Board really increase my annual assessment?

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

127. Nothing in our documents cover bad checks, what can my HOA do about bad checks?

HOA policy for a specific issue can be developed by the authority of your Board of Directors. For example review your Declaration and/or Bylaws for similar text:

“... the Board of Directors shall be responsible for the affairs of the Association and shall have all of the powers and duties necessary for the administration of the Association’s affairs … resolutions duly adopted by the Board of Directors of and for the Corporation or by such rules and regulations as may be prescribed by the Board of Directors …

However, the Board of Directors also need to read and understand their limits to develop a policy 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 for example. 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.

128. My neighbor’s tree fell into my property, who has the responsibility of cleaning up the mess?

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.

129. My HOA Declaration of Covenants states restrictions on people of color, is that valid?

NO –  NOT VALID – your HOA’s restricted discrimination covenant is VOID !

  • Federal  – Title VIII of the Act – the Fair Housing Act, 1968
  • 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.

130. How do we figure out 36B-1-114 to adjust our annual assessment?

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.
(as amended from $100 to $300  Signed Bill 1994 Regular Session Enrolled House Bill 4308)

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

courtesy WVOHOA

131. Does a simple majority mean 67% or what?

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.

 

132. What’s the best advice for buying a home in an HOA in WV?

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 the condition of the 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 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 physically located).
  • Review WV Code §36B Uniform Common Interest Ownership Act.
133. What’s the rule on AirBnB in an HOA?

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 rental in WV is less than 30 days – refer to:

TSD 435 | Short-Term Leases and Rentals of Real Property
Rev. March 2023 | West Virginia Tax Division

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.

134. Is it true my HOA can allow ATVs even though our DCCR says no ATVs?

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. Also review §17F-1-3(2) Homeowner associations may petition the county commission of the county in which the area regulated by the homeowner association is located for an ordinance to regulate or prohibit the operation of all-terrain vehicles upon any street, road or avenue within the area regulated by the homeowner association.

WV 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.

135. My HOA is looking for common area contractors so can you provide business members on your website?

All our Members are listed at: WELCOME NEW MEMBERS where you will find WVOHOA business members.

136. My HOA fails to repair our roads and now they won’t accept my assessment excluding my share of the road repair, can they really refuse that?

In a nutshell, payment of your required assessment is contract law, it’s included with your settlement when you purchased your home in a homeowner association. (PUD Rider) – it’s known as a consensual lien, you promised to pay the assessment, not to hold hostage a portion because of your disagreement.

WV  state law is specific to the full amount owed:

WV 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

137. What’s the difference of my HOA Declaration of Covenants and Restriction and my HOA Bylaws?
  • 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 your HOA, specifically how your Board of Directors conduct the business of your association, it’s their fiduciary responsibility.
138. Why are there no oversight requirements for violation of WV Code 36B Uniform Common Interest Ownership Act?

No state that has adopted the Uniform Common Interest Ownership Act (UCIOA) has enacted Article 5 – the state supervisory role to our knowledge.  UCIOA it is a disclosure law and a regulatory law providing  consumer protection of planned communities. However within our courts, judges often refer to 36B citing article & section relative to the particular planned community case at issue.

139. What’s the only word that means mandatory?

The following is 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

140. The Board of Directors voted without any meeting – can they do that?

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 in the minutes.

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.

 

141. I keep hearing about fracking in my county near my house and I was wondering if you have any information on wells, oil, or gas?

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

142. Our declaration is extremely difficult to understand, and I want to know what is my HOA Board really supposed to accomplish?

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.

143. What is the meaning of a rule in an HOA?

“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).

144. My HOA declaration refers to Chapter 31, Article I, Section 27 that we are to follow and I cannot locate it – can you help us?

Most HOAs registered within the state of West Virginia, prior to 2002, typically include this same reference citation. Your HOA now follows the new statute:
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.

Background:
Chapter 31 Corporations (including Article 1 and Sections 27 and 28) was repealed entirely in the 2002 Vol. 1 Acts of the WV Legislature page 471 Chapter 69 House Bill 2899 by adding thereto a new chapter and replaced in full with Chapter 31E West Virginia Nonprofit Corporation Act.

[Passed March 9, 2002; in effect ninety days from passage. 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.

145. What’s the rule for amending our HOA’s declaration or bylaws?

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, reasonable, and it must include ALL members of your association.

 For your reference:  West Virginia Chapter 36B. Uniform Common Interest Ownership Act. (UCIOA)

§36B-3-103(b) . . . The executive board may not act on behalf of the association to amend the declaration . . .

§36B-2-117. Amendment of declaration.

(a) Subject to the provisions of 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.

(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.

146. Can my HOA really charge me a fine with interest and make me reimburse them for their own expenses?
  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 you and all your association’s 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 by the date due, and then handle your disagreement separately. You might consider mediation, legal counsel, arbitration or in court.

also see FAQ #121

147. What does the Class II mean for our homeowners association?

Article X of the West Virginia Constitution defines property, and the “class” 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

148. How do we know our HOA contractor license is registered in WV?

ARTICLE 42. WEST VIRGINIA CONTRACTOR LICENSING ACT requires all contractors to be  registered with the West Virginia Tax Department/Division, verify workers’ compensation and unemployment coverage, if applicable, and be in compliance with the wage bonding requirements. Reference:  WV TSD 360

West Virginia Code §30-42-3. Definitions.
   (d)       “Contractor” means a person who in any capacity for compensation, other than as an employee of another, undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to construct, alter, repair, add to, subtract from, improve, move, wreck, or demolish any building, highway, road, railroad, structure, or excavation associated with a project, development, or improvement, or to do any part thereof, including the erection of scaffolding or other structures or works in connection therewith, where the cost of the undertaking is $5,000 or more for residential work or $25,000 or more for commercial work.

149. Does WVOHOA have any current information on WV’s HOAs and Condos?

October 2022 Community Associations Institute (CAI) published:
West Virginia Community Associations Facts & Figures.

  • Approximately 71,000 West Virginians live in 30,000 homes in fewer than 1,000 community associations.
  • These residents pay $141 million a year to maintain their communities. These costs would otherwise fall to the local government.
  • 2,400 West Virginians serve as volunteer leaders in their community associations each year, providing $2.3 million in service.
  • The median home value in West Virginia is $115,000. Homes in community associations are generally valued at least 4% more than other homes.

CAI updates typically occur 2 to 3 years

150. My HOA is exhausted – we want to dissolve the whole thing – but how exactly can we do that?

The short answer, in West Virginia, is to follow state law:
§36B-2-118. Termination of common interest community.

Just because your HOA is exhausted – they will be horrifically exhausted, in our opinion, to follow through. Consider: all owners “own & maintain the common area” that may include:

  • road(s)
  • pool(s)
  • sewer/water reclamation facility
  • power station facility
  • water tower facility
  • storm water management area(s)
  • forest conservation agreements
  • clubhouse w/without solar
  • tennis court(s)
  • river access w/without tourists
  • cluster mailboxes/building(s)
  • entrance monuments and flag & flag pole(s)
  • easements
  • culverts
  • bridges
  • trails & paths
  • contracts & promissory notes
  • existing & delinquent funds from required annual assessments
  • existing special assessment(s), loan(s)
  • bank account(s), CD(s), etc.
  • insurance policies & protection
  • individual deeds & titles to amend/refile/record
  • covenants that run with the land, the list can go on and on …

TIP:  be absolutely sure you have retained savvy HOA legal counsel before making such a dramatic decision, it most definitely is a legal formality for dissolution. Termination is not just stopping the business of the corporation, your HOA, by avoiding the restrictions that you agreed to follow at the onset.

151. Why can my HOA stop me from putting up a political sign during election year?

First, review your current Declaration for a covenant restriction pertaining to signs. Most WV HOAs have a restriction similar to:

No signs of any kind may be displayed for public view on any Lot.

No advertising signs or billboards of any nature shall be erected, placed or maintained on The Properties, with the exception of a single one square foot address identification sign, builder’s job location sign and/or one real estate sign offering the premises for sale, none of which exceptions shall exceed four (4) square feet in size.

No sign of any kind larger than one and one half (1.5) square foot shall be displayed on any Lot, except temporary signs in connection with the construction, lease or sale of buildings or Lots, except street name and directional signs.

TIP: for any WV homeowner association: the property purchaser voluntarily consented to follow the covenants, conditions and restrictions when they completed their settlement documents. That agreement is and remains consensual as long as they remain an owner of record in their community. (yes, there are ordinance exceptions through county, municipality, township, etc.)

152. My HOA is part of the old WV Orphan Road Program, so how come I still have to pay my annual assessment to maintain our roads?

The WV Orphan Road Program, also known as the Home Access Road Program (HARP) ended in 2001.  WV generally maintains orphan roads when scheduled.

When you voluntarily purchased your home in an HOA that purchase included your voluntary consent to follow the restrictions that run with the land, namely, your Declaration of Covenants, Conditions and Restrictions, it’s contract law. Within the Declaration you’ll find requirements to pay your assessment every year. You might not understand your annual HOA budget includes expenses your yearly assessment financially supports.

Think about it: landscaping, entrance monument, snow plowing, legal counsel, pool, life guard(s), tennis court, clubhouse, street lights, fire hydrants, website, newsletters, management company, and yes, even administrative supplies & homeowner social programs. The list of expenses can go on and on.