West Virginia HOA fine rules

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" (W. Va. Code § 36B-3-102(a)(11)). That power is granted subject to a qualifier in the opening words of the subsection: "Except as provided in subsection (b), and subject to the provisions of the declaration, the association, even if unincorporated, may" exercise the listed powers (§ 36B-3-102(a)). The chapter does not state what the pre-fine notice must contain and prescribes no delivery method specific to fines. Article 3 of the chapter runs from § 36B-3-101 to § 36B-3-119 and contains no general notice-delivery section and no rule-adoption section; the only delivery rule in article 3 governs association meetings: "Not less than ten nor more than sixty days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting must state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove an officer or member of the executive board" (§ 36B-3-108).

The chapter sets no cure period before a fine, and no cure period anywhere in § 36B-3-102. West Virginia enacted the 1982 form of the Uniform Common Interest Ownership Act, in which § 3-102 consists only of subsections (a) and (b); it contains none of the tenant-violation subsections that carry a ten-day cure period in later versions of the uniform act adopted in other states. Subsection (b), the only other subsection, reads: "The declaration may not impose limitations on the power of the association to deal with the declarant which are more restrictive than the limitations imposed on the power of the association to deal with other persons" (W. Va. Code § 36B-3-102(b)).

W. Va. Code § 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." The chapter sets no number of days within which an owner must ask to be heard, no deadline by which the association must hold the hearing, no procedure for it and no rule on who presides. The right is stated to be non-waivable: "Except as expressly provided in this chapter, provisions herein may not be varied by agreement, and rights conferred may not be waived. A declarant may not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of this chapter or the declaration" (§ 36B-1-104) — although § 36B-1-104 is not among the sections that § 36B-1-204 applies to communities created before the chapter's effective date, and the fine power itself is granted "subject to the provisions of the declaration" (§ 36B-3-102(a)). The chapter contains no counterpart to the pre-suit hearing, board-discretion or rule-making sections found in later versions of the uniform act; article 3 ends at § 36B-3-119.

West Virginia sets no dollar cap on an association fine. The only statutory limit on amount is that fines be reasonable — the association may "levy reasonable fines for violations of the declaration, bylaws, rules, and regulations of the association" (W. Va. Code § 36B-3-102(a)(11)). Fines are secured: "The association has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due. Unless the declaration otherwise provides, fees, charges, late charges, fines and interest charged pursuant to section 3-102(a)(10), (11) and (12) are enforceable as assessments under this section" (§ 36B-3-116(a)). That lien is prior to most other liens and encumbrances, and "is also prior to all security interests described in clause (ii) above to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to section 3-115(a) which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce the lien" (§ 36B-3-116(b)). "A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessments becomes due" (§ 36B-3-116(d)). To perfect and preserve the lien the association must give the owner notice and record a notice of lien: "For the purpose of perfecting and preserving its lien, the association shall give notice to the unit owner in the manner set forth in section one (§56-2-1), article two, chapter fifty-six of this code, or by registered or certified mail, return receipt requested, and in a form reasonably calculated to inform the owner of his liability for payment of the assessment. The lien shall be discharged as to subsequent purchasers for value without notice unless the association shall cause to be recorded a notice of the lien in the office of the clerk of the county commission of any county wherein any part of the condominium is located" (§ 36B-3-116(h)). "A judgment or decree in any action brought under this section must include costs and reasonable attorney's fees for the prevailing party" (§ 36B-3-116(f)). The chapter contains no restriction on foreclosing a lien made up only of fines and no rule on the order in which payments are applied.

West Virginia's records provision is a single sentence: "The association shall keep financial records sufficiently detailed to enable the association to comply with section 4-109. All financial and other records must be made reasonably available for examination by any unit owner and his authorized agents" (W. Va. Code § 36B-3-118). The chapter sets no notice period for a request, no list of records the association must retain beyond financial records, no categories that may be withheld, no fee rule, and no deadline for the association to respond. Section 36B-3-118 is one of the sections that § 36B-1-204(a) applies to communities created before the chapter's effective date. A separate on-demand statement is available for money claimed: "The association upon written request shall furnish to a unit owner a statement setting forth the amount of unpaid assessments against the unit. If the unit owner's interest is real estate, the statement must be in recordable form. The statement must be furnished within ten business days after receipt of the request and is binding on the association, the executive board, and every unit owner" (§ 36B-3-116(g)).