Karey Burkholder and Douglas Thompson, Jr. v. Palisades Park Owners Association, Inc. ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Chaney and Raphael
PUBLISHED
Argued at Winchester, Virginia
KAREY BURKHOLDER AND
DOUGLAS THOMPSON, JR.
OPINION BY
v. Record No. 0187-22-4 JUDGE STUART A. RAPHAEL
FEBRUARY 7, 2023
PALISADES PARK OWNERS ASSOCIATION, INC.
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Norman A. Thomas (Robert O. Wilson; Norman A. Thomas, PLLC; Wilson
Law PLC, on briefs), for appellants.
William L. Mitchell, II (Richard E. Armstrong, IV; Eccleston & Wolf,
P.C., on brief), for appellee.
The Virginia Property Owners’ Association Act provides that “[e]xcept as expressly
authorized” in the Act or in the association’s “declaration,” an association cannot “make an
assessment or impose a charge against a lot or a lot owner unless the charge is a fee for services
provided or related to use of the common area.” Code § 55.1-1805. Appellee Palisades Park
Owners Association, Inc. imposes an annual assessment that includes a fee for inspecting each
property owner’s lot to ensure that it complies with Palisades’ rules. We conclude that this
practice violates Code § 55.1-1805 because the assessment for lot-compliance inspection fees is
not “expressly authorized” by Palisades’ declaration and the fees are not for services relating to
“the common area.”
BACKGROUND
The material facts here are undisputed. Appellants Karey Burkholder and Douglas
Thompson, Jr. (the “Homeowners”) are married and own a home in the Palisades homeowners’
association development. The Homeowners allege that Palisades is violating the Virginia
Property Owners’ Association Act, Code §§ 55.1-1800 to 55.1-1836, by imposing assessments
on members that fund lot-compliance inspections of every member’s property. The
Homeowners argue that Code § 55.1-1805 allows such assessments only if expressly authorized
in the association’s declaration. They say that Palisades’ declaration lacks that clarity.1
Palisades does not dispute that it uses its members’ assessments to pay for lot-compliance
inspections. It says the inspections are needed to ensure that the members’ properties comply
with Palisades’ declaration, articles of incorporation, bylaws, and architectural review board
guidelines. The board of directors of Palisades obtained a legal opinion that using assessments to
conduct the inspections is “consistent with the express language of the Declaration.”
Disagreeing with that conclusion, the Homeowners sued Palisades in Arlington County
Circuit Court, seeking to enjoin the association from continuing to use assessment moneys to
fund lot-compliance inspections.2 At the close of the Homeowners’ case-in-chief, the circuit
court struck their evidence and found for Palisades. The court later awarded Palisades
$67,481.68 in attorney fees based on the Act’s fee-shifting provisions in Code § 55.1-1828. The
Homeowners appeal.
1
Palisades’ “Declaration, Covenants, & Restrictions,” recorded in 1995, was admitted
into evidence as Plaintiffs’ Exhibit B. See generally Code § 55.1-1800 (defining “Declaration”).
2
The Homeowners also sued Richard Shewell, Jr. individually and doing business as
“Neighborhood Inspections” and “Neighborhood Inspections, LLC,” but they nonsuited those
claims before trial (along with certain other claims against Palisades).
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ANALYSIS
A. Palisades’ declaration does not expressly authorize assessments for lot-
compliance inspections (Assignments of Error 1-2).
The Homeowners argue that Code § 55.1-1805 precludes Palisades from imposing
assessments for lot-compliance inspections because such assessments are not expressly
authorized in Palisades’ declaration. They claim that the circuit court thus erred in granting
Palisades’ motion to strike (Assignment of Error 1) and in failing to grant judgment in their favor
(Assignment of Error 2). The standard of review differs for those two claims. We view the facts
in the light most favorable to the Homeowners when considering whether the court erred in
striking their evidence. E.g., Dill v. Kroger Ltd. P’ship I, 300 Va. 99, 109 (2021). But we
consider the facts in the light most favorable to Palisades when determining whether the
Homeowners are entitled to judgment as a matter of law. E.g., Carson ex rel. Meredith v.
LeBlanc, 245 Va. 135, 139-40 (1993). Because the facts are not in dispute, however, the
differing standards of review make no difference in the outcome.
This case turns on the proper interpretation of Code § 55.1-1805. “Questions of statutory
interpretation . . . are subject to de novo review on appeal, and we owe no deference to the circuit
court’s interpretation of the statutory scheme.” Esposito v. Va. State Police, 74 Va. App. 130,
133 (2022). “When construing a statute, [the Court’s] primary objective ‘is to ascertain and give
effect to legislative intent,’ as expressed by the language used in the statute.” Va. Elec. & Power
Co. v. State Corp. Comm’n, 295 Va. 256, 262-63 (2018) (quoting Cuccinelli v. Rector & Visitors
of the Univ. of Va., 283 Va. 420, 425 (2012)). “We must determine the legislative intent by what
the statute says and not by what we think it should have said.” Miller & Rhoads Bldg., L.L.C. v.
City of Richmond, 292 Va. 537, 541-42 (2016) (quoting Carter v. Nelms, 204 Va. 338, 346
(1963)).
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Code § 55.1-1805 restricts the imposition of assessments to pay for services unrelated to
the common area unless authorized by the Act or expressly allowed by the association’s
declaration.3 The first sentence provides that “[e]xcept as expressly authorized” by the Act, by
“the declaration,” or as “otherwise provided by law, no association shall . . . make an assessment
or impose a charge against a lot or a lot owner unless the charge is a fee for services provided or
related to use of the common area.” Code § 55.1-1805. The term “common area” means the
property in a development that “is owned, leased, or required by the declaration to be maintained
or operated by a property owners’ association for the use of its members and designated as a
common area in the declaration.” Code § 55.1-1800. The inspections here are made of each lot
owner’s individual property, so the fees are not “for services provided or related to use of the
common area.” The Homeowners thus read the first sentence of the statute to forbid charging
assessments that include fees for lot-compliance inspections that the Homeowners say are not
expressly authorized by Palisades’ declaration or otherwise permitted by statute.
3
Code § 55.1-1805 provides:
Except as expressly authorized in this chapter, in the declaration, or
otherwise provided by law, no association shall (i) make an assessment or
impose a charge against a lot or a lot owner unless the charge is a fee for
services provided or related to use of the common area or (ii) charge a fee
related to the provisions set out in § 55.1-1810 or 55.1-1811 that is not
expressly authorized in those sections. Nothing in this chapter shall be
construed to authorize an association or common interest community
manager to charge an inspection fee for an unimproved or improved lot
except as provided in § 55.1-1810 or 55.1-1811. The Common Interest
Community Board may assess a monetary penalty for a violation of this
section against any (a) association pursuant to § 54.1-2351 or (b) common
interest community manager pursuant to § 54.1-2349, and may issue a
cease and desist order pursuant to § 54.1-2352.
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1. Code § 55.1-1805 applies to Palisades’ challenged conduct.
Palisades argues at the outset that the Homeowners misunderstand Code § 55.1-1805.
Palisades says that the statute applies only “to charges imposed on an individual lot and lot
owner as opposed to assessments imposed on the community as a whole.” Since assessments for
lot-compliance inspections are imposed on all the lot owners, and not on the plaintiffs
individually, Palisades argues that the statute is irrelevant.
Palisades cites no precedent for its interpretation, and we reject it. Palisades misplaces its
reliance on the singular terms “a lot or a lot owner” in the sentence prohibiting assessments for
services unrelated to the common area. Under Code § 1-227, “[a] word used in the singular
includes the plural and a word used in the plural includes the singular.” Thus, applying the
predecessor version of that statute, the Supreme Court held in Wolfe v. Commonwealth, 167 Va.
486 (1937), that a defendant who stole five cows could not evade criminal responsibility simply
because the statute criminalized the “larceny of a cow.” Id. at 488-89 (emphasis added). Wolfe
found it irrelevant “that the singular article ‘a’ appears before the names of the animals embraced
for it has been held that the article does not necessarily denote the singular.” Id. at 489. The
same principle applies here. Palisades cannot escape the restrictions in Code § 55.1-1805 by
imposing an otherwise illegal fee on two or more property owners—or on all the owners—rather
than on a single owner individually.
We disagree with Palisades that its interpretation finds support in Commonwealth v.
Berry, No. 1350-17-2, 2017 WL 6598484 (Va. Ct. App. Dec. 27, 2017). Berry is both non-
binding, Rule 5A:1(f), and distinguishable. Berry rejected the claim that the Commonwealth
could pursue multiple pretrial appeals under Code § 19.2-398(A), which allows the
Commonwealth to take “a pretrial appeal from . . . an order” in a felony case. Id. at *5. We said
that the normal rule in Code § 1-227 that the singular includes the plural was overcome because
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“the context provided by the remainder of the statutory scheme strongly suggests that the use of
the singular . . . was intended to limit the Commonwealth to only one appeal of a suppression
ruling.” Id. After canvassing the various rules expediting Commonwealth pretrial appeals, we
concluded that “the Commonwealth’s right to appeal is limited and must be pursued
expeditiously or not at all . . . . To allow the Commonwealth multiple bites at the same appellate
apple would render [those] deadlines essentially meaningless.” Id. at *6.
Palisades does not persuade us that reading the singular to include the plural would
undermine Code § 55.1-1805 in the same way. To the contrary, our reading protects residential
property owners by prohibiting assessments not expressly authorized in the declaration if the
moneys are used to fund items unrelated to the common area. Palisades’ construction, by
contrast, would permit assessments for all manner of things unrelated to the common area as
long as the assessment is imposed on two or more lot owners, or on all of the owners. Palisades’
reading would therefore gut the protection the statute affords to a purchaser’s normal investment
expectations.
Palisades’ interpretation lacks a limiting principle. Palisades acknowledged at oral
argument that its reading would permit an association to impose assessments to fund the
installation of balconies and skylights on every member’s home. Its “limiting principle” was that
the democratically elected members of an association’s board would probably not impose such
burdensome requirements on members. That answer is not reassuring; it provides cold comfort
to purchasers concerned about unforeseeable costs for their own lots that might be imposed by an
association’s over-eager board.
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2. We do not reach whether the second sentence of Code § 55.1-1805
prohibits the lot-compliance fees in question.
Neither party has briefed whether the second sentence of Code § 55.1-1805, standing
alone, prohibits the inspection-fee assessments at issue. That sentence calls out “inspection fees”
by name: “Nothing in [the Act] shall be construed to authorize an association . . . to charge an
inspection fee . . . except as provided in § 55.1-1810 or 55.1-1811.” Code §§ 55.1-1810
and -1811, in turn, appear in Article 2, which governs the disclosure requirements that apply
when a lot is sold. The seller must disclose to the buyer, among other things, that the Act
“requires the seller to obtain from the property owners’ association an association disclosure
packet.” Code § 55.1-1808(B). That disclosure packet must include “[a] statement that any
improvement or alteration made to the lot, or uses made of the lot or common area assigned to
such lot, is or is not in violation of the declaration, bylaws, rules and regulations, architectural
guidelines, and articles of incorporation, if any, of the association.” Code § 55.1-1809(A)(9).4
To collect and disclose that information, of course, the association must inspect the lot. The Act
therefore empowers the association to charge for those inspection costs. The procedures to
charge for the inspection fee are governed by Code § 55.1-1810, if the association is
professionally managed, and by Code § 55.1-1811, if the association is not professionally
managed.
Although the Homeowners argued in the circuit court that the second sentence of Code
§ 55.1-1805 prohibits an association from charging inspection fees except in connection with
disclosure packets, they have abandoned that argument on appeal. The Homeowners instead
maintained at oral argument that assessments may include a charge for lot-compliance
4
The buyer has the right to cancel the purchase within a set time after receiving the
disclosure packet. See Code § 55.1-1808(D).
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inspections only if—according to the first sentence of Code § 55.1-1805—such charges are
“expressly authorized . . . in the declaration.”5 Accordingly, we leave for another day whether
the statute’s second sentence bars assessments for lot-compliance inspections that are not needed
for disclosure packets. See Butcher v. Commonwealth, 298 Va. 392, 395 (2020) (accepting
parties’ concession, “not as a basis for deciding the contested issue of law, but as a basis for not
deciding it” (emphasis altered) (quoting Simms v. Van Son, No. 150191, 2016 WL 3208951, at
*2 n.4 (Va. Feb. 12, 2016) (per curiam))).
3. Code § 55.1-1805 imposes a clear-statement rule.
Given that assumption, the outcome here turns on whether an assessment for lot-
compliance inspections is “expressly authorized” by Palisades’ declaration. Code § 55.1-1805.
We agree with the Homeowners that the phrase “expressly authorized” means what it says. It
imposes a clear-statement rule—the “legal drafter” must “use clarity of expression.” Clear-
Statement Rule, Black’s Law Dictionary (11th ed. 2019). In other words, “the result sought must
be unquestionably expressed in the text.” Id.6
We disagree with the dissent’s claim that “expressly” means something less than
“explicitly.” The dissent cites no authority for that distinction, which conflicts with standard
usage. Webster’s defines expressly and explicitly as synonyms. Expressly, Webster’s Third New
5
The Homeowners still find the second sentence relevant. They say it shows that the
General Assembly prohibited the use of assessments except as expressly authorized in the
declaration.
6
The Homeowners argue that a clear-statement rule is also required by Sainani v.
Belmont Glen Homeowners Association, Inc., 297 Va. 714 (2019), which applied “the principle
of strict construction to restrictive covenants” in an association’s declaration. Id. at 722. Sainani
considered restrictive covenants as applied to the display of holiday lighting, id. at 718-19, rather
than assessments to pay for services. Because we find that the first sentence of Code
§ 55.1-1805 imposes a clear-statement rule, we need not decide whether that rule is also required
by Sainani.
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International Dictionary (2002) (“1: in direct or unmistakable terms: in an express manner:
EXPLICITLY, DEFINITELY, DIRECTLY.” (emphasis added)). So does the O.E.D. Expressly, The
Compact Edition of the Oxford English Dictionary (1971) (“[1]b. In direct or plain terms;
clearly, explicitly, definitely.” (emphasis added)). See also Express, Burton’s Legal Thesaurus
(6th ed. 2021) (treating “express” and “explicit” as synonymous).
It makes sense for the General Assembly to have required that an association’s
declaration speak with unmistakable clarity before authorizing assessments to fund services or
improvements unrelated to the common area. Assessments to fund services or improvements in
the common area are different in kind from assessments to fund services or improvements on
individual lots. Because the common area is shared and jointly owned by members of the
community-interest association, the association needs rules and a governance structure (1) to
make decisions about the common area, and (2) to ensure that members pay their fair share of
common-area expenses and do not free-ride on the contributions of others. Individually owned
lots are different. So long as lot owners conduct themselves within the established rules of the
community, they enjoy “the ‘absolute right’ to property,” which “‘consists in the free use,
enjoyment, and disposal of all [one’s] acquisitions, without any control or diminution, save only
by the laws of the land.’” Sainani v. Belmont Glen Homeowners Ass’n, Inc., 297 Va. 714, 722
(2019) (alterations in original) (quoting 1 William Blackstone, Commentaries *138)). Requiring
an association’s declaration to expressly authorize assessments to fund improvements or services
related to individual lots—but not common areas—comports with the stronger property rights
that inhere in an individually owned lot.
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4. Palisades’ declaration does not expressly authorize assessments for
lot-compliance inspections.
The proper interpretation of the declaration and its covenants presents “a question of law
that we review de novo.” Id.; Manchester Oaks Homeowners Ass’n, Inc. v. Batt, 284 Va. 409,
419-20 (2012) (same). Palisades tries to satisfy the clear-statement requirement mainly by
pointing to three provisions of the declaration. Article III, § 3(c)(3) empowers Palisades’ board
of directors “[t]o fix, levy, and collect assessments as provided in Article V.” Article III,
§ 3(c)(5) empowers Palisades “[t]o employ, enter into contracts with, delegate authority to, and
supervise such persons or entities as may be appropriate to manage, conduct, and perform the
business obligations and duties of the Association.” And Article V, § 3(a)(viii) allows annual
assessments to be used for “[t]he implementation, administration, and enforcement of this
Declaration, including, but not limited to, court costs and attorney fees.” Palisades concludes
from these provisions that the declaration “expressly authorizes it to impose assessments on its
members, employ agents to carry out authorized tasks, and use assessments to enforce the
requirements of its Declaration.” We agree with Palisades’ characterization as far as it goes.
But what the declaration does not expressly authorize—what it fails to “[c]learly and
unmistakably communicate[],” or to communicate with “with directness and clarity,” Express,
Black’s Law Dictionary, supra—is the authority to use assessments to pay for the lot-compliance
inspections at issue. Such authority may well be implied. But it is not express.
The drafters knew how to expressly authorize specific assessments when they wanted to.
For instance, Article V, § 4(b) empowers Palisades to “levy a Restoration Assessment upon any
Lot whose owner fails to maintain such Lot, as provided in Article VI, Section 2.” Article VI,
§ 2(b) then provides that, “[w]hen so assessed, a statement for the amount thereof shall be
rendered to the Owner of said Lot, at which time the assessment shall become due and payable
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and a continuing lien upon such Lot.” That express authority to impose a restoration assessment
highlights the lack of similar express authority to spend assessment moneys on lot-compliance
inspections. Article VI, § 2(b) runs on for a page and a half. But conspicuously absent is any
mention of assessments to fund lot inspections to see if the homeowners are breaking any rules.
We disagree with the dissent that Article III, § 4 provides express authority to impose
assessments to fund lot-compliance inspections. That section empowers the Architectural
Review Board to “[m]onitor [l]ots for compliance with architectural standards and approved
plans for alteration in accordance with the Bylaws and Rules.” Yet monitoring by the Board can
be accomplished without paying a third-party to perform annual lot-compliance inspections of
every lot. Indeed, that section says nothing about lot-compliance inspections, let alone
assessments to fund such inspections. That section might have been an excellent place to
provide for assessments to fund lot-compliance inspections, if that is what the drafters had in
mind. The dissent infers the existence of such power from the power simply to “monitor” lots.
But even assuming for argument’s sake that such power is implied, it is not express.
We conclude that imposing assessments for lot-compliance inspections fails the clear-
statement test: those assessments are not “expressly authorized” by the declaration. Code
§ 55.1-1805. As a result, the circuit court erred in granting Palisades’ motion to strike because
the Homeowners had “proven [their] cause of action.” Int’l Paper Co. v. Cnty. of Isle of Wight,
299 Va. 150, 170 (2020) (quoting Brown v. Koulizakis, 229 Va. 524, 531 (1985)).
Although Palisades requests that we remand this case for a new trial if we find error in
the circuit court’s judgment, “[a] civil case shall not be remanded for a trial de novo except when
the ends of justice require it.” Code § 8.01-681. If warranted by the record, an appellate court
that reverses a judgment may instead “enter such judgment as to the court shall seem right and
proper.” Id. We conclude that the ends of justice do not require a new trial. As noted at the
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outset, the material facts are not disputed. We asked the parties at oral argument whether there
would be anything left to try about the validity of the inspection fees if we find that Code
§ 55.1-1805 applies and that the fees are not expressly authorized by the declaration. Palisades
could not identify any disputed facts. Nor can we. Accordingly, we find that Code § 55.1-1805
bars Palisades from imposing an assessment on its members for the costs of lot-compliance
inspections that are not expressly authorized in the declaration.7
Still, we stop short of entering the permanent injunction against Palisades that the
Homeowners requested as general relief in their opening brief. We think it unwise “to replace
traditional equitable considerations with a rule that an injunction automatically follows,” eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392-93 (2006), whenever a homeowner’s
association violates the Act. A trial judge, sitting as a chancellor, applies equitable principles
when determining whether a permanent injunction is warranted. See, e.g., Fancher v. Fagella,
274 Va. 549, 556-57 (2007). “The decision whether to grant an injunction always rests in the
sound discretion of the chancellor, and depends on the relative benefit an injunction would
confer upon the plaintiff in contrast to the injury it would impose on the defendant. Any burden
imposed on the public should also be weighed.” Id. at 556. Moreover, the Homeowners’
complaint identified various forms of relief that might be appropriate, including declaratory
relief, disgorgement, and a permanent injunction. The parties, however, have not addressed
which of those remedies should be awarded. “As a general rule, we serve as ‘a court of review,
not of first view.’” Cal. Condo. Ass’n v. Peterson, 301 Va. 14, 23 (2022) (quoting Bailey v.
7
Nothing in this opinion prohibits Palisades from charging inspection fees in accordance
with preparing disclosure packets, “as provided in [Code] § 55.1-1810 or 55.1-1811.” Code
§ 55.1-1805.
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Loudoun Cnty. Sheriff’s Off., 288 Va. 159, 181 (2014)). So we leave it to the circuit court to
fashion the appropriate remedy in the first instance.
B. The Homeowners are entitled to reasonable attorney fees and costs
(Assignments of Error 3-4).
Our reversal of the judgment for Palisades renders moot the Homeowners’ claim that the
attorney fees awarded to Palisades were excessive. Because we find that Code § 55.1-1805
prohibits Palisades from imposing assessments to fund lot-compliance inspections that are not
authorized by the declaration, Palisades is not “the prevailing party” entitled to “reasonable
attorney fees” or costs under Code § 55.1-1828(A). Instead, the Homeowners have prevailed
and are thus entitled to recover their reasonable attorney fees and costs under that statute.
CONCLUSION
The circuit court erred in granting Palisades’ motion to strike and in failing to enter
judgment for the Homeowners on their claim that Code § 55.1-1805 prohibits Palisades from
charging assessments for the lot-compliance inspections at issue. As prevailing parties, the
Homeowners are entitled under Code § 55.1-1828 to their reasonable attorney fees and costs for
litigating these issues in the circuit court, on appeal, and on remand.
We remand this case for the circuit court to determine, consistent with this opinion, the
appropriate remedy and the reasonable attorney fees and costs to which the Homeowners are
entitled.
Reversed and remanded.
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Athey, J., dissenting.
I agree with the majority that Code § 55.1-1805 requires that the use of the annual
assessment to fund lot-compliance inspections must be “expressly authorized” in the declaration.
I also agree that “express” means “[c]learly and unmistakably communicated” or to
communicate “with directness and clarity.” However, the majority conflates the meaning of the
terms “expressly” and “explicitly.” This Court “seek[s] ‘to effectuate the intent of the legislature
as expressed by the plain meaning of the words used in the statute,’ and as such, the plain
language controls.” Chesapeake Hosp. Auth. v. State Health Comm’r, 301 Va. 82, 95 (2022)
(quoting Llewellyn v. White, 297 Va. 588, 595 (2019)). Since I believe the majority errs by
requiring that the declaration explicitly authorize the use of annual assessments for lot-
compliance inspections, I respectfully dissent.
The majority concludes that Article III, § 3(c)(3), Article III, § 3(c)(5), and Article V,
§ 3(a)(viii), when read together, may imply authority to use the annual assessment to fund lot-
compliance inspections but does not “expressly authorize” the use of the annual assessment to
pay for lot-compliance inspections. The majority seemingly requires that for the declaration to
expressly authorize funding lot-compliance inspections from the annual assessment, the
declaration would have to be so direct and explicit as to say: “the Board of Directors is
authorized to use funds raised by the annual assessment to fund the inspection of lots to evaluate
whether the lot complies with the standards articulated by the Architectural Review Board.” The
majority supports their conclusion by first observing that in a separate section of the declaration
such an explicit clause authorizing a “Restoration Assessment” exists: “[t]he Association may
levy a Restoration Assessment upon any Lot whose owner fails to maintain such Lot, as provided
in Article VI, Section 2.” Article V, § 4(b). Contrasting this explicit language authorizing a
restoration assessment with the language in Article V, § 3(a)(viii), the majority concludes that
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such “express authority to impose a restoration assessment highlights the lack of similar express
authority to spend annual assessment moneys on lot-compliance inspections.” I simply disagree
with the majority’s conclusion.
Article III, § 3(c)(3) authorizes the board of directors “[t]o fix, levy, and collect
assessments as provided in Article V.” Article III, § 3(c)(5) further authorizes the board “to
employ, enter into contracts with, delegate authority to, and supervise such persons or entities as
may be appropriate to manage, conduct, and perform the business obligations and duties of the
Association.” Article V, § 3(a)(viii) then authorizes the use of the annual assessments for “[t]he
implementation, administration, and enforcement of this Declaration, including, but not limited
to, court costs, and attorney fees.” In Article III, § 4 the architectural review board is tasked with
creating architectural standards and monitoring lot-compliance with those standards. Finally,
Article VI, § 2(b), grants the association “the further right, through its agents, employees or
committees, to enter upon and inspect any Lot at any reasonable time for the purpose of
ascertaining whether any violation of the provisions or requirements of this Declaration exists on
such Lot or in such Living Unit . . . .” In my judgment, these clauses, when read in conjunction,
“clearly and unmistakably communicate” with “directness and clarity” that the board of directors
has the express authority to collect the annual assessment and employ or contract with a party to
conduct lot-compliance inspections. Because conducting lot-compliance inspections is an
enumerated power of the association and creating standards for compliance is the duty of the
architectural review board, conducting those inspections qualifies as an act “implement[ing],
administer[ing], and enforc[ing] this Declaration.”
I therefore disagree with the majority because I find it inescapable that the declaration
expressly authorizes the use of annual assessment funds to fund lot-compliance inspections
without the necessity of a clause as explicit as the majority requires. Article V, § 3(a)(viii)’s
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grant to use annual assessment funds to implement, administer, and enforce the declaration is
general, but express. A power granted expressly though in general terms, is not a power granted
implicitly. Stretching “expressly” to mean “explicitly,” raises the bar beyond what is required by
the plain meaning of the applicable statute in this case. The majority’s statutory interpretation of
“expressly authorized” is as equally unfaithful to the language of Code § 55.1-1805 as would be
lowering the bar by allowing an implicit authorization to suffice.
Finally, since we should seek to effectuate the intent of the General Assembly when
interpreting the plain meaning of any statute and I fear that the “explicitly authorized” standard
the majority advocates will both encourage litigation and require serial amendments to a large
percentage of association declarations throughout the Commonwealth, I cannot agree that the
majority opinion effectuates the likely intent of the General Assembly as expressed in the
statutory framework. For that additional reason, I would have adopted a less exacting
interpretation of the adverb expressly and permitted “express authority” to be gleaned from the
contractual language as generally expressed in various articles in the declaration. Hence, I would
have affirmed the trial court’s judgment and therefore must respectfully dissent.
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