When Is a West Virginia HOA Rule Unenforceable?

A board can announce a rule, but announcing it is not the same as being able to enforce it. In West Virginia, the Uniform Common Interest Ownership Act (W. Va. Code Ch. 36B) and the recorded documents set several hurdles a rule has to clear before it binds a homeowner. For your specific situation, a licensed West Virginia attorney is the right resource. This is general information, not legal advice.

The general tests, and where West Virginia's rule power comes from

The tests that apply in most states also apply here: a rule generally has to be properly adopted, consistent with the recorded declaration, and reasonable, and it can't conflict with federal law such as the Fair Housing Act, the FCC's OTARD antenna rule, or the Freedom to Display the American Flag Act. Those tests, and how uneven enforcement is treated, are explained in When Is an HOA Rule Unenforceable?.

In West Virginia, the rule power belongs to the association. Under § 36B-3-102(a), "subject to the provisions of the declaration, the association, even if unincorporated, may," among other things, "Adopt and amend bylaws and rules and regulations" (§ 36B-3-102(a)(1)). Chapter 36B doesn't set out a separate procedure for adopting rules, so the declaration and bylaws supply it.

The board does the acting. "Except as provided in the declaration, the bylaws, subsection (b), or other provisions of this chapter, the executive board may act in all instances on behalf of the association" (§ 36B-3-103(a)). Board members elected by the owners owe "ordinary and reasonable care," and members appointed by the declarant owe "the care required of fiduciaries of the unit owners" (§ 36B-3-103(a)). There are limits: "The executive board may not act on behalf of the association to amend the declaration" (§ 36B-3-103(b)). A rule that in effect rewrites the declaration raises that question.

Fines need notice and a hearing (§ 36B-3-102(a)(11))

The association may "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" (§ 36B-3-102(a)(11)). A fine is therefore tied to two things the statute names: notice with a chance to be heard, and reasonableness. If a fine is attached to a rule, see also Fighting an HOA Fine in West Virginia.

Which communities Chapter 36B reaches

Not every West Virginia community is fully covered:

• Small planned communities. A planned community that "Contains no more than twelve units and is not subject to any development rights," or whose declaration caps the average annual common expense liability at $300 (as adjusted), is subject only to three short sections of the Act "unless the declaration provides that this entire chapter is applicable" (§ 36B-1-203).
• Older communities. For communities created before the Act took effect, only listed sections apply, including "3-102(a)(1) through (6) and (11) through (16)" (the rule and fine powers above), the records section, and the remedies section. Those sections "apply only with respect to events and circumstances occurring after the effective date of this chapter and do not invalidate existing provisions of the declaration, bylaws or plats or plans of those common interest communities" (§ 36B-1-204(a)).

Can my HOA ban solar panels in West Virginia?

It depends on the document's date and how the ban was adopted. Under W. Va. Code § 36-4-19, a governing-document provision executed or recorded after the section took effect that effectively prohibits or restricts a solar energy system is void, but members may vote a restriction in or out. Reasonable restrictions and common-area limits remain allowed.

West Virginia limits solar bans in later governing documents, but with an important exception. Under § 36-4-19(a), "any covenant, restriction, or condition contained in any governing document of a housing association executed or recorded after the effective date of this section that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable." The same sentence continues: "Provided, That a housing association may, by vote of its members, establish or remove a restriction that prohibits or restricts the installation or use of a solar energy system."

Other limits on the protection:

• Reasonable restrictions. "This section does not apply to provisions that impose reasonable restrictions on solar energy systems including restrictions for historical preservation, architectural significance, religious or cultural importance to a given community" (§ 36-4-19(c)). A "reasonable restriction" means "those restrictions that do not effectually result in a prohibition of their use by eliminating the system's energy conservation benefits or economic practicality" (§ 36-4-19(b)(2)).
• Common areas. "Nothing in this section precludes housing associations from restricting or limiting the installation of solar energy systems installed in common areas and common structures" (§ 36-4-19(c)).

Can a West Virginia HOA enforce a discriminatory covenant?

No. Under W. Va. Code § 36-4-18, county clerks must record and post a disclaimer stating that certain covenants or restrictions based on race, color, religion, ancestry, sex, familial status, blindness, handicap or national origin are "invalid and unenforceable," and that such a restriction "is void notwithstanding its recordation."

Old deeds and declarations sometimes still contain restrictions that can't be enforced. Under § 36-4-18, each county clerk must record and post a disclaimer stating that "it is the law of this state that certain covenants or restrictions that are based on race, color, religion, ancestry, sex, familial status, blindness, handicap or national origin are invalid and unenforceable," and that such a restriction "is void notwithstanding its recordation."

Where to turn

Because the Act leaves so much to the declaration and bylaws, owners often start by reading the recorded documents next to the adopted rule. Under § 36B-3-118, "All financial and other records must be made reasonably available for examination by any unit owner and his authorized agents"; a records request can reach the adopted rules and the minutes showing how a rule was passed.

If an association or other person "fails to comply with any of its provisions or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief," and "The court, in an appropriate case, may award reasonable attorney's fees" (§ 36B-4-117). When a homeowner believes a rule is invalid or is being enforced unevenly, the avenues include raising it with the board in writing, the courts, and a licensed West Virginia attorney to evaluate whether a specific rule is enforceable against a specific owner.

Sources

• W. Va. Code § 36B-1-203 — Applicability to new common interest communities; small planned communities
• W. Va. Code § 36B-1-204 — Applicability to preexisting common interest communities
• W. Va. Code § 36B-3-102 — Powers of unit owners' association
• W. Va. Code § 36B-3-103 — Executive board members and officers
• W. Va. Code § 36B-3-118 — Association records
• W. Va. Code § 36B-4-117 — Effect of violations on rights of action; attorney's fees
• W. Va. Code § 36-4-18 — Recorded disclaimer of unlawful restrictions
• W. Va. Code § 36-4-19 — Solar energy covenants unenforceable