West Virginia HOA ADUs & Modifications

Key Findings

West Virginia keeps its modification rules simple to state but layered in practice: one common-interest act sits on top of an older condominium statute, a stand-alone solar law overrides anti-solar covenants, and accessory dwelling units stay a question of local zoning. Here is what stands out, point by point.

• Start with the creation date. Communities created after July 1, 1986 fall under the West Virginia Uniform Common Interest Ownership Act (the WVCIOA); condominiums created earlier, or those that opt in by recorded declaration, fall under the older Unit Property Act.^1,2
• The solar rule lives outside both acts. W. Va. Code § 36-4-19 sits in Chapter 36, not in the WVCIOA or the Unit Property Act, and it voids only what "effectively prohibits or restricts" solar while preserving defined reasonable restrictions and common-area limits.³
• No regulator, no manager license. West Virginia enforces these rules through the courts. Since July 1, 2022, the civil path runs from Circuit Court to the Intermediate Court of Appeals to the Supreme Court of Appeals.^4,5
• One decision anchors the recent law. Justice Holdings, LLC v. Glade Springs Village POA (2023) confirmed that the WVCIOA applies fully to a planned community and that a declaration cannot contract around the act where the act does not allow it.⁶

Details

Section 1: Overview — ADUs and modifications in West Virginia

West Virginia governs member modifications through a single common-interest-ownership act layered over an older condominium statute, it voids any covenant that effectively prohibits or restricts a solar energy system, and it leaves accessory dwelling units (ADUs) to municipal and county zoning rather than preempting association documents. The dividing line is the creation date. Communities created after July 1, 1986 fall under the West Virginia Uniform Common Interest Ownership Act (WVCIOA), W. Va. Code § 36B-1-101 et seq., a 1982-model UCIOA adoption that covers condominiums, planned communities, and cooperatives. Condominiums created before that date, or those that opt in by recorded declaration, answer to the West Virginia Unit Property Act, W. Va. Code § 36A-1-1 et seq.^1,2,7 West Virginia is a UCIOA state.

The solar provision sits apart from both acts, in W. Va. Code § 36-4-19 (Chapter 36, Estates and Property). It voids any provision in a housing association's governing documents that effectively prohibits or restricts a solar energy system, subject to defined reasonable restrictions.³ No confirmed West Virginia statute overrides association governing documents on ADUs; ADU permissibility turns on local zoning read together with the declaration.⁸ Four federal overlays bind every association no matter what state law says: the Freedom to Display the American Flag Act of 2005 (the U.S. flag), the FCC OTARD Rule (antennas and satellite dishes), the Fair Housing Act (resident-paid reasonable modifications for disability), and ADA Title III (common-area facilities that operate as public accommodations).^9,10,11 The sections that follow set out the statutory framework, the compliance duties it creates, the recent legislative and judicial activity, and where West Virginia stands nationally.

Section 2: The legal framework

2A. The WVCIOA and the Unit Property Act

The WVCIOA, W. Va. Code § 36B-1-101 et seq., is West Virginia's primary statute for common interest communities. It adopts the 1982 version of the UCIOA, placing West Virginia in a small group of states — with Alaska, Colorado, Minnesota, and Nevada — that enacted the 1982 model rather than the later 1994 or 2008 versions.⁷ It governs the formation, management, and operation of every common interest community created after its July 1, 1986 effective date, and it organizes those rules into four articles: General Provisions (Article 1), Creation, Alteration and Termination (Article 2), Management (Article 3), and Protection of Purchasers (Article 4).^1,12 Section 36B-1-201 sets applicability for new communities and § 36B-1-204 for preexisting ones, with the definitions at § 36B-1-103.² Small and limited-expense-liability planned communities may escape most provisions under § 36B-1-203 unless their declaration opts in.¹³ Condominiums created before July 1, 1986, or those that expressly elect coverage by recording a declaration, fall under the older West Virginia Unit Property Act, W. Va. Code § 36A-1-1 et seq. (Chapter 36A, enacted 1963).^14,2 Most associations also incorporate as nonprofits under Chapter 31E.²

Neither act writes a dedicated architectural-review code. The declaration creates review authority, and the association adopts rules under it, exercising those powers through WVCIOA Article 3 (see § 36B-3-102).¹⁵ When a West Virginia court reviews an architectural decision, it applies contract principles to the declaration and to the association's exercise of its powers, holds the association to the statutory obligation of good faith under § 36B-1-113, and follows the general rule that courts construe restrictive covenants strictly while enforcing reasonable architectural restrictions that serve a legitimate community purpose and stay within the association's granted authority.¹⁶

2B. Solar and other categories

Solar anchors this category, and the governing provision is W. Va. Code § 36-4-19, titled "Solar energy covenants unenforceable; penalty." It sits in Chapter 36, Article 4 (Covenants), separate from the WVCIOA and the Unit Property Act, and you should cite it as § 36-4-19, not as a WVCIOA section.³ The Legislature enacted it in 2012 through House Bill 2740 — sponsored by Delegates Manypenny, Doyle, Mahan, Guthrie, Canterbury, Iaquinta, Barker, Hartman, Brown, and Hatfield — which passed the House on February 24, 2012 and has not been amended since.^17,18 The statute declares that any covenant, restriction, or condition in a housing association's governing document, executed or recorded after the section's effective date, that "effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable." A housing association may, by a vote of its members, establish or remove such a restriction.³ That void-prohibition rule carries limits: subsection (c) provides that the section "does not apply to provisions that impose reasonable restrictions on solar energy systems including restrictions for historical preservation, architectural significance, religious or cultural importance to a given community," and adds that "[n]othing in this section precludes housing associations from restricting or limiting the installation of solar energy systems installed in common areas and common structures."³ The definitions treat a reasonable restriction as one that does not effectively amount to a prohibition by eliminating the system's energy-conservation benefits or economic practicality, and the statute does not displace state and local land-use, health, and safety standards.³ This page treats solar at the framework level.

The other categories have no West Virginia HOA-specific statute. Research did not identify any West Virginia statute governing HOA electric-vehicle charging or landscaping, so the declaration governs each, subject to the federal overlays. Neighboring Virginia, by contrast, has enacted an EV-charging statute, Va. Code § 55.1-1823.1; West Virginia has not.¹⁹ Research likewise found no enacted West Virginia HOA flag-display statute; federal law protects the U.S. flag, and the declaration controls other flags.²⁰ The result is a split: an anti-solar covenant is unenforceable in West Virginia, while EV charging, landscaping, and flags other than the U.S. flag turn on the declaration and any federal overlay.

2C. ADUs and federal overlays

Research identified no West Virginia statute that overrides association governing documents on ADUs. ADU permissibility poses a two-layer question. The first layer is municipal and county zoning: West Virginia has no statewide ADU statute, and land-use authority rests with local governments, so ADU rules vary by jurisdiction — Parkersburg maintains an accessory-dwelling ordinance, for example, and Jefferson County has adopted an ADU policy.^8,21 The second layer is the declaration: within a common interest community, the recorded covenants and the association's review authority decide whether and how an owner may build an ADU, even where local zoning would allow one. West Virginia therefore does not join the states that preempt association documents on ADUs, such as California (Civ. Code § 4751) or Colorado (HB 24-1152).⁸

Four federal overlays bind every West Virginia association regardless of state law and regardless of which state act applies. The Freedom to Display the American Flag Act of 2005 protects a member's display of the U.S. flag.⁹ The FCC OTARD Rule, 47 C.F.R. § 1.4000, limits restrictions on antennas and satellite dishes within a member's exclusive-use area.¹⁰ The Fair Housing Act, 42 U.S.C. § 3604(f)(3), requires associations to permit resident-paid reasonable modifications that a person with a disability needs to use and enjoy the dwelling.¹¹ ADA Title III reaches common-area facilities that qualify as public accommodations, such as a clubhouse or pool open to the public.²² These are federal requirements, not West Virginia statutes.

Section 3: Compliance obligations created by the framework

A. Architectural review process obligations

Review authority and process come from the declaration and the association's rules. Post-1986 common interest communities exercise those powers through the WVCIOA's management provisions (§ 36B-3-102); pre-1986 or opt-in condominiums exercise them through the code of regulations and council powers of the Unit Property Act (Chapter 36A, Article 3), read together with the declaration.^15,14 A board should apply only the standards the declaration authorizes and act consistently with the statutory obligation of good faith under § 36B-1-113.² Both acts make written decisions and retained records of applications and dispositions the best practice, and doing so reduces the litigation exposure that follows from inconsistent or undocumented denials — though neither act prescribes a single statutory decision form for general modifications.

B. Modifications the association must permit

Solar leads the list. Under W. Va. Code § 36-4-19, which reaches any housing association's governing document and so applies to post-1986 communities and pre-1986 or opt-in condominiums alike, a covenant that effectively prohibits or restricts a solar energy system is void, though reasonable restrictions and common-area limits under subsection (c) survive.³ This is a void prohibition, not an unconditional right to install anything anywhere: a reasonable restriction that does not eliminate the system's benefits remains enforceable. Beyond solar, the federal overlays set the floor. The Freedom to Display the American Flag Act of 2005 protects the U.S. flag.⁹ The OTARD Rule, 47 C.F.R. § 1.4000, protects antennas and dishes.¹⁰ The Fair Housing Act, 42 U.S.C. § 3604(f)(3), requires the association to allow resident-paid reasonable modifications for disability.¹¹ And ADA Title III reaches common-area public accommodations.²²

C. ADU obligations and limits on HOA authority

No West Virginia statute forces an association to permit an ADU against its declaration. Municipal and county zoning bind the locality and decide whether an ADU is allowed as a land-use matter; the declaration governs within the community and may lawfully prohibit or condition an ADU even where zoning permits one.⁸ This holds for post-1986 communities and pre-1986 or opt-in condominiums alike. An association weighing an ADU request should read the zoning and the declaration together and deny only on grounds the declaration supports.

D. Enforcement, dispute resolution, and appeal obligations

West Virginia has no HOA or condominium regulator and no community-association-manager license. The courts enforce the WVCIOA, the Unit Property Act, and the governing documents — the West Virginia Consumer Credit and Protection Act, Chapter 46A, reaches debt-collection practices, including some association collection activity, but it is not an HOA regulator.²³ The declaration sets any pre-suit procedure. The civil path runs from the Circuit Court to the Intermediate Court of Appeals of West Virginia, created effective July 1, 2022, and then to the Supreme Court of Appeals of West Virginia, which — despite the word "Appeals" in its name — is the state's highest court (W. Va. Code § 51-11-3).^4,5 For final orders entered before July 1, 2022, appeals went from the Circuit Court directly to the Supreme Court of Appeals, because no intermediate court then existed.⁵

Section 4: Recent legislative and judicial activity

A. Recent legislation

Research found no enacted West Virginia bill in the past 24 to 48 months that amended the WVCIOA architectural or ADU framework or the § 36-4-19 solar provision. The solar provision itself dates to 2012 (House Bill 2740) and has not changed since.^17,18

B. Recent appellate rulings

The most significant recent decision on the common-interest statutes is Justice Holdings, LLC v. Glade Springs Village Property Owners Association, Inc. The ruling is a covenant-and-common-interest-statute case rather than an architectural-modification case, but it settles a point that governs every modification dispute: the WVCIOA controls the community's structure, and a declaration's attempt to depart from the act is measured against the statute.

C. Active legislative debates

Recent sessions have produced proposals touching association documents or land use, none of them enacted into the modification framework. House Bill 3558 (2023) would have added § 36B-1-203a, providing that the WVCIOA "shall only apply to a planned community, regardless of size, if the declaration of that planned community expressly adopts the UCIOA"; it died after landing on the House calendar (last action March 11, 2023).²⁵ After HB 3558 failed, the Legislature adopted Senate Concurrent Resolution 25, requesting a study of the WVCIOA's effect on condominium, planned-community, and cooperative development projects.²⁶ Separate 2024 measures — including the Mountain Homes Act (Senate Bill 188) and home-based-business bills — addressed housing and land use around associations but never reached the modification framework.²⁶

Section 5: National positioning and related coverage

West Virginia sits with the UCIOA states, and three features set it apart on modifications. Its solar protection lives outside the common-interest act, in W. Va. Code § 36-4-19, which makes it one of the stronger solar states — alongside California, Hawaii, and New Mexico — by voiding covenants that effectively prohibit or restrict solar.³ It added an intermediate appellate court only in 2022, so the current civil path runs Circuit Court to Intermediate Court of Appeals to the distinctively named Supreme Court of Appeals, the state's highest court.⁵ And on ADUs it is not a preemption state: unlike California (Civ. Code § 4751) or Colorado (HB 24-1152), it leaves ADUs to municipal zoning plus the declaration.⁸ For a multi-state operator, the working rule is simple: in West Virginia an anti-solar covenant is unenforceable, while most other modifications, ADUs included, turn on the declaration read together with local zoning and the federal overlays.

HOA Weekly's West Virginia ADUs and Modifications coverage updates quarterly as the Legislature and the West Virginia courts act. The federal frameworks — the Freedom to Display the American Flag Act, the OTARD Rule, the Fair Housing Act, and ADA Title III — apply to West Virginia associations regardless of the state framework, and receive a fuller treatment in HOA Weekly's federal coverage.

Recommendations

• Classify each community first. Confirm the creation date before applying any rule: post-July-1-1986 communities are WVCIOA (Chapter 36B); pre-1986 or opt-in condominiums are Unit Property Act (Chapter 36A). The correct act decides which default rules and exemptions apply — for example, the § 36B-1-203 small-community carve-out. Re-classify if a declaration amendment or opt-in changes the governing act.
• Rewrite solar covenants now. Any recorded provision that effectively prohibits or restricts solar is unenforceable under § 36-4-19. Replace blanket bans with reasonable restrictions that survive subsection (c) — design, placement, common-area limits — and route any change to a member vote, since the statute channels adoption or removal of solar restrictions through the membership. The trigger to revisit this is any statutory amendment to § 36-4-19, which has not occurred since 2012.
• Treat ADUs as a two-step analysis. Check local zoning for whether an ADU is permitted as a land-use matter, then check the declaration for whether it is permitted or conditioned within the community. Deny only on grounds the declaration supports. Watch for any statewide ADU bill; none reaching association documents has been enacted, so a change to that status would alter this recommendation.
• Document every modification decision in writing. Because there is no HOA regulator and enforcement is purely judicial, the record a board builds — application, standards applied, written decision — is the primary defense in a Circuit Court challenge. Apply declaration standards consistently to reduce covenant-enforcement exposure.
• Apply the four federal overlays as a compliance floor. Permit the U.S. flag, OTARD antennas and dishes, resident-paid FHA reasonable modifications, and ADA-covered common-area access regardless of what the declaration says. Denials in these categories carry federal, not merely contractual, exposure.

Caveats

• Neither the WVCIOA nor the Unit Property Act contains a modification-specific decision statute for general architectural review; the review process is a function of each community's declaration, so obligations vary by document. This page states the framework, not any single community's rules.
• West Virginia appellate courts have not extensively developed the scope of a "reasonable restriction" on solar under § 36-4-19(c); the statutory text controls, and close cases should be evaluated against it and any local land-use, health, and safety standards.
• The Justice Holdings decision addresses WVCIOA applicability and assessments, not architectural review; it is cited here as the leading recent common-interest-statute ruling, and its assessment holding was remanded in part rather than finally resolved on the dollar figures.
• Some secondary sources report a June 2015 effective date for § 36-4-19; the primary legislative record ties the effective date to 90 days after the March 10, 2012 passage of HB 2740 (approximately June 8, 2012), and the code carries no later amendment. The exact date of the Governor's signature was not independently confirmed.
• ADU rules and local ordinances change frequently at the municipal and county level; verify the specific locality's current code before advising on any ADU project.

1. W. Va. Code § 36B-1-101 (short title, Uniform Common Interest Ownership Act), West Virginia Legislature ↩
2. Homeowners Protection Bureau, West Virginia HOA Laws (WVCIOA § 36B-1-101 et seq., effective July 1, 1986; Unit Property Act § 36A-1-1; §§ 36B-1-103, -201, -204; Nonprofit Corporation Act ch. 31E; WVCCPA ch. 46A) ↩
3. W. Va. Code § 36-4-19, Solar energy covenants unenforceable; penalty, West Virginia Legislature ↩
4. W. Va. Code § 51-11-3, West Virginia Intermediate Court of Appeals; court created; established and operable on or before July 1, 2022 ↩
5. West Virginia Judiciary, About the Intermediate Court of Appeals (opened July 1, 2022; decisions binding unless overruled by the Supreme Court of Appeals) ↩
6. Justice Holdings, LLC v. Glade Springs Village Property Owners Ass'n, Inc., No. 22-0002 (W. Va. 2023) (Uniform Act applies to GSV; assessments reversed/vacated in part and remanded) ↩
7. Community Associations Institute, Uniform Common Interest Ownership Act (states enacting the 1982 version: Alaska, Colorado, Minnesota, Nevada, West Virginia) ↩
8. Steadily, ADU Housing Laws and Regulations in West Virginia (no statewide ADU statute; rules set locally under the IRC) ↩
9. Freedom to Display the American Flag Act of 2005, Pub. L. 109-243, GovInfo ↩
10. FCC, Over-the-Air Reception Devices (OTARD) Rule, 47 C.F.R. § 1.4000 ↩
11. HUD, Reasonable Modifications under the Fair Housing Act, 42 U.S.C. § 3604(f)(3) ↩
12. W. Va. Code ch. 36B, article structure (Articles 1-4), West Virginia Legislature ↩
13. FirstService Residential, WV HOA Laws Guide (§ 36B-1-203 exemption for small and limited-expense-liability planned communities) ↩
14. W. Va. Code § 36A-1-1, short title, Unit Property Act, West Virginia Legislature ↩
15. W. Va. Code § 36B-3-101 et seq., Management of the Common Interest Community (powers of unit owners' association), West Virginia Legislature ↩
16. Homeowners Protection Bureau, West Virginia HOA Laws (courts enforce reasonable architectural restrictions within the association's authority under the declaration and state law) ↩
17. West Virginia Legislature, HB 2740 (2012 Regular Session), adding § 36-4-19 (solar covenants unenforceable) ↩
18. West Virginia Legislature, § 36-4-19 bill history (2012 Regular Session HB 2740; Enrolled Committee Substitute; no later amendment) ↩
19. Va. Code § 55.1-1823.1, Electric vehicle charging stations permitted (Virginia statute; no West Virginia equivalent identified) ↩
20. HOA Management, HOA Flag and Political Sign Rules Per State (no specific West Virginia HOA flag-display statute identified) ↩
21. City of Parkersburg, WV Codified Ordinances ch. 1369, Accessory Dwellings (American Legal Publishing) ↩
22. U.S. Department of Justice, ADA Title III (public accommodations) ↩
23. RunHOA, West Virginia State Laws (no dedicated state oversight agency and no standalone CAM license; enforcement through the courts; WVCCPA ch. 46A governs collections) ↩
24. WV MetroNews, Supreme Court sides with Glade Springs property owners (June 19, 2023) (57-page opinion by Justice Haley Bunn, 3-2 ruling; $6.6 million circuit-court award; assessments remanded) ↩
25. West Virginia Organization of Homeowners Associations, Legislation tracker (HB 3558, 2023, proposed § 36B-1-203a limiting WVCIOA applicability; pulled/dead) ↩
26. West Virginia Organization of Homeowners Associations, Legislation tracker (Senate Concurrent Resolution 25 study request; Mountain Homes Act SB 188, 2024; home-based-business bills) ↩