The conjunctive test, and why the bylaws could not satisfy it

The controlling line of authority runs from Anderson v. Lake Arrowhead Civic Association, 253 Va. 264 (1997), where the Supreme Court of Virginia held that “to qualify under the POAA, an association must possess both the power to collect a fixed assessment or to make variable assessments and a corresponding duty to maintain the common area”, and that such “conditions must be expressly stated in a recorded instrument in the land records of the jurisdiction where some portion of the development is located.”

The Court of Appeals quoted Shepherd v. Conde, 293 Va. 274, 282 (2017), on why the two elements cannot be separated: the holding rests “not on the Act's definition of 'declaration,' where the elements are disjunctive, but on its definition of 'property owners' association,' where the elements are conjunctive.”

Then it applied that to Terrace View: the declaration “gives it 'the right to establish and collect assessments.' But it does not impose 'a corresponding duty to maintain the common area.' While such a duty is set forth in Terrace View's bylaws, it is not 'imposed' because the duty could be 'altered or eliminated simply by amending the associations' bylaws.'” Hence: “Terrace View is not a valid POA under the POAA.”

The rule that does the work is from Dogwood Valley Citizens Ass'n v. Shifflett, 275 Va. 197, 204 (2008). A duty a board can amend away is not a duty the statute recognises.

The 2024 amendment did not rescue it

Terrace View's most interesting argument was that the General Assembly had already fixed this. Code § 55.1-1805 had been amended to provide that “Nothing in this chapter shall be construed to prevent an association from levying or using assessments, charges, or fees to pay the association's contractual or other legal obligations in the exercise of the association's powers” — which, the association said, relaxed the need for a declaration to connect a duty with the right to collect.

The court was not persuaded. The amendment addresses what a validly formed association may spend assessments on. It does not address whether an association was validly formed in the first place.

The fallback that also failed

An invalid POA is not automatically powerless. Anderson itself allowed a purported association to levy the assessments the covenant specifically enumerated, “provided that it expend[ed] those fees for no other purpose than general maintenance.” That is ordinary contract law rather than the Act.

Terrace View tried to fit itself into that. The court drew the distinction: “the covenant in Anderson provided for a fixed and definite fee designated for a specific purpose, whereas the Declaration here provides no such definiteness.” Citing Dodge v. Trustees of Randolph-Macon Woman's College, 276 Va. 1, 5 (2008), the court held that “In order to be binding, an agreement must be definite and certain as to its terms and requirements; it must identify the subject matter and spell out the essential commitments and agreements with respect thereto.” A bare right to set assessments at whatever figure the board chooses is too indefinite to be an enforceable contract.

Equitable defences did not reach it either

Terrace View argued waiver, estoppel and unclean hands — the Jannahs had paid before, one of them had served on the board and enforced the assessments, and they had sold a lot subject to the declaration. The court held those facts “irrelevant to 1) whether Terrace View is a POA under the POAA and 2) whether the Declaration contains an enforceable contractual provision.” Years of payment do not manufacture authority that the recorded instrument never created.

The conditions that change the answer

Two questions decide a community, and they are separate. First, does the recorded declaration impose a maintenance duty on the association? Second, if not, does it specify a fixed and definite fee for a stated purpose? A community failing both is in Terrace View's position.

The duty must be in the recorded instrument. Bylaws, articles and long practice do not substitute.

This is a published opinion of the Court of Appeals, which has decided most Virginia civil appeals since its jurisdiction expanded, and it applies Supreme Court authority rather than departing from it.

What to watch next

The 2026 General Assembly did not amend the definitions in § 55.1-1800, and the decision issued after the session's bills were already filed. Whether the 2027 session responds — and how it could, given that the defect lies in privately recorded instruments rather than in the statute — is the open question.