Homeowners Homework

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.

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

REFERENCES: Homeowners Associations Taxation

WEST VIRGINIA LAW:

  • Statute of Limitations –
    West Virginia Code, § 11A-4-4(a), “Right to set aside deed when one entitled to notice
    not 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 does
    not have actual knowledge that such notice has been given to others in time to protect his
    interests by redeeming the property, he, his heirs and assigns, may, before the expiration
    of three years following the delivery of the deed, institute a civil action to set aside the
    deed. [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.

  • §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:

 

others will be added …