Senate Bill No. 424
(By Senators Wooton, White, Helmick, Ross, Prezioso, Walker,
Buckalew, Schoonover, Anderson and Sharpe)
[Passed March 10, 1998; in effect ninety days from passage.]
AN ACT to amend and reenact section one hundred three, article
one, chapter thirty-six-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
the uniform common interest ownership act; providing for
definitions; and allowing a resort owner to impose a charge
to cover costs incurred for maintenance and improvements to
real estate made available to unit owners without creating
a common interest ownership community.
Be it enacted by the Legislature of West Virginia:
That section one hundred three, article one, chapter thirty-
six-b of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
ARTICLE 1. GENERAL PROVISIONS.
In the declaration and bylaws (section one hundred six,
article three of this chapter), unless specifically provided
otherwise or the context otherwise requires, and in this chapter:
(1) "Affiliate of a declarant" means any person who
controls, is controlled by, or is under common control with a
declarant. A person "controls" a declarant if the person: (i)
Is a general partner, officer, director or employer of the
declarant; (ii) directly or indirectly or acting in concert with
one or more other persons, or through one or more subsidiaries,
owns, controls, holds with power to vote, or holds proxies
representing, more than twenty percent of the voting interest in
the declarant; (iii) controls in any manner the election of a
majority of the directors of the declarant; or (iv) has
contributed more than twenty percent of the capital of the
declarant. A person "is controlled by" a declarant if the
declarant: (i) Is a general partner, officer, director or
employer of the person; (ii) directly or indirectly or acting in
concert with one or more other persons, or through one or more
subsidiaries, owns, controls, holds with power to vote, or holds
proxies representing, more than twenty percent of the voting
interest in the person; (iii) controls in any manner the election
of a majority of the directors of the person; or (iv) has contributed more than twenty percent of the capital of the
person. Control does not exist if the powers described in this
paragraph are held solely as security for an obligation and are
(2) "Allocated interests" means the following interests
allocated to each unit: (i) In a condominium, the undivided
interest in the common elements, the common expense liability,
and votes in the association; (ii) in a cooperative, the common
expense liability and the ownership interest and votes in the
association; and (iii) in a planned community, the common expense
liability and votes in the association.
(3)"Association" or "unit owners' association" means the
unit owners' association organized under section one hundred one,
article three of this chapter.
(4)"Common elements" means: (i) In a condominium or
cooperative, all portions of the common interest community other
than the units; and (ii) in a planned community, any real estate
within a planned community owned or leased by the association,
other than a unit.
(5)"Common expenses" means expenditures made by, or
financial liabilities of, the association, together with any
allocations to reserves.
(6)"Common expense liability" means the liability for common expenses allocated to each unit pursuant to section one
hundred seven, article two of this chapter.
(7)"Common interest community" means real estate with
respect to which a person, by virtue of his ownership of a unit,
is obligated to pay for real estate taxes, insurance premiums,
maintenance or improvement of other real estate described in a
declaration: Provided, That any resort owner which, prior to the
effective date of this article, began the development of a resort
and imposed fees or assessments upon owners of real estate in the
resort for maintenance and care of the roads, streets, alleys,
sidewalks, parks, common areas and common facilities in and
around the resort, for fire and police protection and for such
other services as may be made available to owners of real estate,
may also impose the same fees and assessments to be used for the
same or similar purposes upon persons purchasing real estate in
the resort after the effective date of this article without
creating a common interest community.
"Ownership of a unit" does not include holding a leasehold
interest of less than twenty years in a unit, including renewal
(8)"Condominium" means a common interest community in
which portions of the real estate are designated for separate
ownership and the remainder of the real estate is designated for common ownership solely by the owners of those portions. A
common interest community is not a condominium unless the
undivided interest in the common elements are vested in the unit
(9)"Conversion building" means a building that at any time
before creation of the common interest community was occupied
wholly or partially by persons other than purchasers and persons
who occupy with the consent of purchasers.
(10)"Cooperative" means a common interest community in
which the real estate is owned by an association, each of whose
members is entitled by virtue of his ownership interest in the
association to exclusive possession of a unit.
(11)"Dealer" means a person in the business of selling
units for his own account.
(12)"Declarant" means any person or group of persons acting
in concert who: (i) As part of a common promotional plan, offers
to dispose of his or its interest in a unit not previously
disposed of; or (ii) reserves or succeeds to any special
(13)"Declaration" means any instruments, however
denominated, that create a common interest community, including
any amendments to those instruments.
(14)"Development rights" means any right or combination of rights reserved by a declarant in the declaration to: (i) Add
real estate to a common interest community; (ii) create units,
common elements or limited common elements within a common
interest community; (iii) subdivide units or convert units into
common elements; or (iv) withdraw real estate from a common
(15)"Dispose" or "disposition" means a voluntary transfer
to a purchaser of any legal or equitable interest in a unit, but
the term does not include the transfer or release of a security
(16)"Executive board" means the body, regardless of name,
designated in the declaration to act on behalf of the
(17) "Identifying number" means a symbol or address that
identifies only one unit in a common interest community.
(18) "Leasehold common interest community" means a common
interest community in which all or a portion of the real estate
is subject to a lease, the expiration or termination of which
will terminate the common interest community or reduce its size.
(19)"Limited common element" means a portion of the common
elements allocated by the declaration or by operation of
subdivision (2) or (4), section one hundred two, article two of
this chapter for the exclusive use of one or more but fewer than all of the units.
(20)"Master association" means an organization described in
section one hundred twenty, article two of this chapter, whether
or not it is also an association described in section one hundred
one, article three of this chapter.
(21)"Offering" means any advertisement, inducement,
solicitation or attempt to encourage any person to acquire any
interest in a unit, other than as security for an obligation. An
advertisement in a newspaper or other periodical of general
circulation, or in any broadcast medium to the general public, of
a common interest community not located in this state, is not an
offering if the advertisement states that an offering may be made
only in compliance with the law of the jurisdiction in which the
common interest community is located.
(22)"Person" means an individual, corporation, business
trust, estate, trust, partnership, association, joint venture,
government, governmental subdivision or agency, or other legal or
commercial entity. In the case of a trust, the corpus of which
is real estate, however, "person" means the beneficiary of the
trust rather than the trust or the trustee.
(23)"Planned community" means a common interest community
that is not a condominium or a cooperative. A condominium or
cooperative may be part of a planned community.
(24)"Proprietary lease" means an agreement with the
association pursuant to which a member is entitled to exclusive
possession of a unit in a cooperative.
(25) "Purchaser" means a person, other than a declarant or
a dealer, who by means of a voluntary transfer acquires a legal
or equitable interest in a unit other than: (i) A leasehold
interest (including renewal options) of less than twenty years;
or (ii) as security for an obligation.
(26) "Real estate" means any leasehold or other estate or
interest in, over, or under land, including structures, fixtures
and other improvements and interest that by custom, usage or law
pass with a conveyance of land though not described in the
contract of sale or instrument of conveyance. "Real estate"
includes parcels with or without upper or lower boundaries, and
spaces that may be filled with air or water.
(27)"Residential purposes" means use for dwelling or
recreational purposes, or both.
(28) "Resort" means a destination location which consists
of: (i) One or more persons offering recreational facilities and
services such as skiing, golf, tennis or boating to the general
public and commercial facilities such as retail stores,
restaurants and hotels or other lodging accommodations; and (ii)
at least one hundred residential units, a majority of which are used as vacation or second homes rather than primary residences.
(29) "Resort owner" means any person owning or operating
substantially all of the recreational facilities located within
a resort, or the predecessor in title of any such person.
(30)"Security interest" means an interest in real estate or
personal property, created by contract or conveyance, which
secures payment or performance of an obligation. The term
includes a lien created by a mortgage, deed of trust, trust deed,
security deed, contract for deed, land sales contract, lease
intended as security, assignment of lease or rents intended as
security, pledge of an ownership interest in an association, and
any other consensual lien or title retention contract intended as
security for an obligation.
(31)"Special declarant rights" means rights reserved for
the benefit of a declarant to: (i) Complete improvements
indicated on plans and plans filed with the declaration (section
one hundred nine, article two of this chapter) or, in a
cooperative, to complete improvements described in the public
offering statement pursuant to subdivision (2), subsection (a),
section one hundred three, article four of this chapter; (ii)
exercise any development right (section one hundred ten, article
two of this chapter); (iii) maintain sales offices, management
offices, signs advertising the common interest community, and models (section one hundred fifteen, article two of this
chapter); (iv) use easements through the common elements for the
purpose of making improvements within the common interest
community or within real estate which may be added to the common
interest community (section one hundred sixteen, article two of
this chapter); (v) make the common interest community subject to
a master association (section one hundred twenty, article two of
this chapter); (vi) merge or consolidate a common interest
community with another common interest community of the same form
of ownership (section one hundred twenty-one, article two of this
chapter); or (vii) appoint or remove any officer of the
association or any master association or any executive board
member during any period of declarant control (subsection (d),
section one hundred three, article three of this chapter).
(32)"Time share" means a right to occupy a unit or any of
several units during five or more separated time periods over a
period of at least five years, including renewal options, whether
or not coupled with an estate or interest in a common interest
community or a specified portion thereof.
(33)"Unit" means a physical portion of the common interest
community designated for separate ownership or occupancy, the
boundaries of which are described pursuant to subdivision (5),
subsection (a), section one hundred five, article two of this chapter. If a unit in a cooperative is owned by a unit owner or
is sold, conveyed, voluntarily or involuntarily encumbered or
otherwise transferred by a unit owner, the interest in that unit
which is owned, sold, conveyed, encumbered, or otherwise
transferred is the right to possession of that unit under a
proprietary lease, coupled with the allocated interests of that
unit, and the association's interest in that unit is not thereby
(34)"Unit owner" means a declarant or other person who owns
a unit, or a lessee of a unit in a leasehold common interest
community whose lease expires simultaneously with any lease, the
expiration or termination of which will remove the unit from the
common interest community, but does not include a person having
an interest in a unit solely as security for an obligation. In
a condominium or planned community, the declarant is the owner of
any unit created by the declaration. In a cooperative, the
declarant is treated as the owner of any unit to which allocated
interests have been allocated (section one hundred seven, article
two of this chapter) until that unit has been conveyed to another