West Virginia HOAs are encouraged to print, complete and return the WVOHOA (EPOHOA) Homeowners Homework, this basic form has been extended indefinitely.
In the spring of 2016 then EPOHOA, mounted an active search
at the behest of David Stiles, Attorney – WV State Tax Department “whenever you have specific information that any county is not following the law, please bring it to our attention, so that we may contact that county’s assessor directly with a reminder.”
The results were startling –
The current example is APPLE KNOLLS HOMEOWNERS ASSOCIATION. Apple Knolls had discovered their storm water management common area had been sold at auction for delinquent tax in 2009. Apple Knolls has been financially maintaining what they believed to have been their SWM property of +13 acres at an average cost of $8,000/year supported with required HOA assessments from their members. Over the course of the sold years they have spent roughly $56,000 and continuing.
EPOHOA and forward to WVOHOA has continually shared information to increase knowledge. We have contacted the WV Department of Revenue, State Tax Department with common area tax issues.
- November 18, 2015 correspondence to Mark Matkovich, WV State Tax Commissioner
- November 19, 2015 E-Mail with the WV House & Senate
- December 1, 2015 Reply from David Stiles, Attorney for
Mark Matkovich, WV State Tax Commissioner - May 9, 2016 correspondence to David Stiles, RE: Sold Tax Auction – SWM
- July 12, 2016 Reply from David Stiles
May 2015 REFERENCE: Taxation of Homeowner’s Associations and Common Interest Communities
WV State Tax Department TSD-318 SUMMARY
SWM is the acronym for: Storm Water Management
DILEMMA – LACK OF STATE OVERSIGHT
The owner of the SWM is not a homeowner in Apple Knolls HOA but a private citizen who pays no assessment to the HOA. We have no idea if an auction sale for delinquent tax includes the rights that run with the land and/or the requirements of the HOA’s governing documents. HOAs are required to maintain insurance for their common area, including SWM. We have no idea exactly how to recover HOA SWM when mistakenly sold at a delinquent tax auction. There is no available HOA guidance to refer to.
HOAs are continually trapped with having to retain legal council which is always extremely expensive. It is our desire that as attorney for the state tax department you would right this wrong and tackle the issue, not just for Apple Knolls, but all HOAs in West Virginia that surface with these tax auction sale surprises.
EPOHOA dug deep to locate WV code or any ordinance that protects SWM and/or flood plains from being sold out from under the HOA. We cannot locate anything; we can only find county requirements for builders of subdivisions who must provide water run off areas, storm water management and/or flood plains parcels.
WVOHOA (EPOHOA) Homeowners Homework Basic Form, print, complete, return
HISTORY: Common Area Taxation
- 1984 WV Uniform Common Interest Ownership Act, §36B-1-105. Separate titles and taxation.
- 2009 Crystal Lakes Homeowners Association, Jefferson County, Civil Action No. 09-C-117
- 2009 Blue Ridge Acres Association, Jefferson County, Civil Action No. 11-AA-4
- 2010 Blue Ridge Acres, Jefferson County Assessor
- 2011 Berkeley County Delinquent and Nonentered Land Sale, referencing HOAs
- 2012 Cloverdale Heights Homeowners Association, Jefferson County Assessor
- 2013 Berkeley County Delinquent and Nonentered Land Sale, referencing HOAs
- 2014 Spring Mills Homeowners Association, Berkeley County Assessor
- 2015 Berkeley County Delinquent and Nonentered Land Sale, referencing HOAs
- 2015 Spring Mills Homeowners Association, Tax Assessments for Common Areas, procedure
- 2016 Apple Knolls Homeowners Association, Berkeley County SWM Tax Sale Receipt
REFERENCES: Homeowners Associations Taxation
- 1982 R. Homeowners’ Associations Under 501(c)(4), 501(c)(7) and 528,
Continuing Professional Education Federal NonProfit - 2004 Comprehensive Tax Scenarios For Homeowners Associations,
University of Northern Colorado - 2005 Homeowners’ Fees and the Issue of Double Taxation,
University of California Hastings College of Law - 2011 Letter to the Editor, FLIP HOA COMMON AREA,
Martinsburg Journal - 2012 HOAs and taxes, still confusing to most,
Bret Hersh – Lets Talk – Journal News - 2017 Presidio Terrace Homeowners Association, San Fransisco Tax Sale
West Virginia Public Broadcasting - 2017 Someone bought their street – Common Area Tax Sale
Matier & Ross, San Francisco Chronicle
WEST VIRGINIA LAW:
- Statute of Limitations –
West Virginia Code, § 11A-4-4(a), “Right to set aside deed when one entitled to noticenot notified,” provides, in part, as follows:If any person entitled to be notified under the provisions of section twenty-two or fifty-five, article three of this chapter is not served with the notice as therein required, and doesnot have actual knowledge that such notice has been given to others in time to protect hisinterests by redeeming the property, he, his heirs and assigns, may, before the expirationof three years following the delivery of the deed, institute a civil action to set aside thedeed. [Mr. Hess, Auditor of Berkeley County, WV was indeed notified and ignored the plea from Apple Knolls and their management company. Mr. Hess steadfastly dismissed all parties requesting return of the Apple Knolls common area.]
- CHAPTER 11A.
COLLECTION AND ENFORCEMENT OF PROPERTY TAXES. ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED [meaning: hand over] AND WASTE AND UNAPPROPRIATED LANDS. - Appendix Tax Lien – WVU College of Law
the steps that local governments in West Virginia must take in tax lien foreclosure proceedings in order to comply with the West Virginia Code, as well as state and federal due process requirements. - §59-3-2. Classification of legal advertisements; designation of newspapers; frequency of publication; posting; manner of publishing.
Class I published once
Class II published two successive weeks
Class III published three successive weeks -
§11A-3-1. Declaration of legislative purpose and policy.
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§11A-3-73. Release of taxes, interest and charges on land assessed by erroneous description, etc; misdescription, etc., not to result in forfeiture or subject land to the authority and control of the Auditor.
IN THE COURTS:
- 2011 Erroneous Tax Sale – WV Supreme Court of Appeals
Wayne County, WV MZRP vs Huntington Realty Corp. - 2016 Common Property Sold at Tax Sale Still Bound by Declaration
Benoit v. Cerasaro, Case No. 2015-057
others will be added …