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

• Court: Court of Appeals of Virginia
• Decided: February 7, 2023
• Docket: 0187224
• Status: Published

Opinion

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). -2- 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)).

-3- 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. -4- 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 -5- “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.

-6- 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). -7- 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. -8- 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.

-9- 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

- 10 - 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 - 11 - 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. - 12 - 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.

- 13 - 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 - 14 - 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 - 15 - 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.

- 16 -