A Virginia condo association's silence about asbestos was not fraud
A Virginia condo association's silence about asbestos was not fraud
2026-09-19 · Virginia · Courts
Condominium owners who found asbestos in their flooring could not sue their association for failing to tell them about it, because they could not plead that the association owed them any duty to speak. The Court of Appeals of Virginia affirmed the dismissal in Giles v. Hamlet Condominium Homeowners' Association, Inc., Record No. 1358-23-2, an unpublished opinion decided May 13, 2025 by Judge Lisa M. Lorish.1
The facts are sympathetic and the result is a pleading rule.
What happened
Dianne and Wesley Giles bought a condominium unit in Henrico County in 2013 from a seller who was not a party to the litigation. At purchase, the association gave them a copy of its bylaws. In 2021, after the unit suffered water damage, they learned there was asbestos in the flooring — told to them, on the pleadings, by a member of the association's management team.
They sued the association for fraudulent concealment. The circuit court sustained the association's demurrer for failure to plead any actionable theory of fraud, “as the Gileses had failed to plead that Hamlet had any duty to disclose.” The Court of Appeals affirmed.
The source-of-duty rule
The court's reasoning turns on where a duty comes from. “The failure to plead any duty—a 'legal or equitable obligation to communicate to the other'—is fatal to the Gileses' fraudulent concealment claim.”
And on the bylaws the owners pointed to: “Any 'duty' stemming from the bylaws would be contractual in nature. And 'losses suffered as a result of the breach of a duty assumed only by agreement, rather than a duty imposed by law, remain the sole province of the law of contracts.'” The quoted authority is Filak v. George, 267 Va. 612, 618 (2004).
Why the distinction is not a technicality
Virginia keeps contract and tort strictly apart, and the separation has real consequences for what a claimant can recover. A fraud claim opens the door to punitive damages and a longer limitations period, and it does not depend on privity in the way a contract claim does. That is why owners plead fraud where a contract claim would be awkward — and it is why Virginia courts police the line carefully.
The owners here had a structural problem: they bought from a seller, not from the association. The association's bylaws obliged it to make certain repairs. Converting that obligation into a duty to volunteer information about a latent condition, owed to a purchaser, was the step the court would not take.
The second failure: intent
The court gave an independent ground. “In addition, the Gileses failed to plead that Hamlet had any intent to conceal the presence of the asbestos.” What they pleaded was that they received the bylaws when they bought in 2013, and that eight years later — and three years after the water damage — a member of the management team told them about the asbestos.
That sequence describes an association disclosing, not concealing. Nondisclosure fraud in Virginia requires a knowing and deliberate decision not to disclose a material fact, and a pleading that shows the association volunteering the information undercuts the allegation it is meant to support.
What this does not decide
It is important to be exact about the reach of an affirmed demurrer. The decision does not hold that a Virginia condominium association may never owe a disclosure duty. It holds that these plaintiffs did not plead one, and that a bylaw repair obligation is not by itself a source of one.
Categories of case that remain untouched: a claim by an owner against the seller, where Virginia's residential disclosure regime and the common-law rules on active concealment apply; a claim arising from a partial disclosure that was misleading because incomplete; a claim resting on a confidential or fiduciary relationship, which the association-owner relationship may supply in some contexts; and an ordinary contract claim for breach of the repair obligation itself.
Where the statutory disclosure duties actually sit
Virginia's association disclosure obligations are concentrated in the resale process rather than in the common law. Section 55.1-2310 of the Resale Disclosure Act sets out in a numbered list what a resale certificate must contain — governing documents, assessments, approved capital expenditures, reserve balances, the current reserve study, financial statements, unsatisfied judgments and pending actions that could have a material impact, and, since July 1, 2025, a statement that the governing documents may make an owner responsible for all or part of an insurance deductible.
That list is the answer to “what must a Virginia association tell a purchaser.” It is a statutory list, delivered at a statutory moment, and it is not open-ended.
The conditions that change the answer
Unpublished. Not designated for publication under Code § 17.1-413(A).
It is a demurrer. The court assessed what was pleaded, not what could be proved. Different allegations produce a different analysis.
The duty must be imposed by law. That is the pivot of the whole opinion, and it is where any similar Virginia claim will be decided.
What to watch next
Nothing in the 2026 session altered the Condominium Act's disclosure provisions or the Resale Disclosure Act. HB 621, carried over to 2027, would add one more required resale-certificate item — a statement of any unexpired declarant control rights.
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