West Virginia HOA Foreclosure

Details

Section 1 — Overview

West Virginia gives its homeowners associations a powerful legal tool: a statutory assessment lien that rides six months ahead of a prior recorded first mortgage. And when it comes time to enforce that lien, the state runs the process almost entirely through a non-judicial trustee's sale — no courtroom required, and no post-sale redemption window waiting on the other side.

Common interest communities created on or after July 1, 1986, operate under the West Virginia Uniform Common Interest Ownership Act (WVUCIOA), W. Va. Code § 36B-1-101 et seq.¹ Condominiums that elected coverage under the older West Virginia Unit Property Act, W. Va. Code § 36A-1-1 et seq.,² continue under that 1963 statute. Under W. Va. Code § 36B-3-116(b),³ the association lien takes priority over a first security interest to the extent of six months of common-expense assessments based on the periodic budget. Enforcement runs through the trustee's sale process under W. Va. Code § 38-1-1 et seq.,⁴ requiring published notice and certified-mail service before a public auction.

Federal law runs alongside state procedure throughout. The Fair Debt Collection Practices Act — as the U.S. Supreme Court construed it in Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019)⁵ — the Servicemembers Civil Relief Act,⁶ and the bankruptcy automatic stay⁷ each shape what an association can and cannot do during a collection or foreclosure action. This page sets out the statutory framework, the procedural sequence, and the recent legislative and judicial activity that practitioners need to manage delinquency and foreclosure in West Virginia communities.

Section 2 — The statutory framework

2A. The West Virginia Uniform Common Interest Ownership Act and the super-priority

West Virginia adopted the Uniform Common Interest Ownership Act in 1986, codifying it as W. Va. Code § 36B-1-101 et seq.¹ The Act governs the formation, management, and operation of common interest communities — condominiums, cooperatives, and planned communities — created on or after the July 1, 1986 effective date. Communities created before that date remain primarily governed by their organizing statute, but W. Va. Code § 36B-1-204⁸ applies an enumerated set of WVUCIOA provisions, including § 36B-3-116 (lien for assessments), to those communities as to events occurring after the effective date. Condominiums formed under the West Virginia Unit Property Act, W. Va. Code § 36A-1-1 et seq.,² a 1963 statute, continue under that Act where the property was submitted to it by recorded declaration under § 36A-4-1(a).⁹

The association lien arises under W. Va. Code § 36B-3-116(a)¹⁰ from the time an assessment or fine becomes due. Unless the declaration provides otherwise, fees, charges, late charges, fines, and interest charged under § 36B-3-102(a)(10), (11), and (12)¹¹ are enforceable as assessments. The lien takes priority over most other encumbrances, with exceptions for liens recorded before the declaration, a first security interest recorded before the assessment became delinquent, and liens for real estate taxes.

The super-priority is the feature that matters most to lenders and multi-state operators. Under § 36B-3-116(b),³ the association lien also rides ahead of a first security interest "to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to section 3-115(a)¹² which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce the lien." That window is six months, not nine. The super-priority covers only common-expense assessments based on the periodic budget — fines, late fees, interest, and collection costs fall outside the super-priority portion that primes the first mortgage, even though they remain part of the general lien. The lien is extinguished unless enforcement proceedings begin within three years after the full amount becomes due, under § 36B-3-116(d),¹³ and § 36B-3-116(f)¹⁴ awards costs and reasonable attorney's fees to the prevailing party in any action under the section.

2B. Non-judicial trustee's sale

West Virginia runs predominantly as a non-judicial foreclosure state. Where a deed of trust contains a power of sale, the trustee may sell the secured property at public auction under W. Va. Code § 38-1-1 et seq.⁴ without court action. Section 38-1-3¹⁵ authorizes the trustee to sell on default once the conditions precedent in the trust deed are met. Judicial foreclosure remains available but rarely appears in residential property matters, because the trustee's sale is faster and less expensive.

Notice requirements appear in W. Va. Code §§ 38-1-4 and 59-3-2.¹⁶ The trustee must publish notice of the sale as a Class II legal advertisement — once a week for two successive weeks in a qualified newspaper in the county where the property is located. The trustee must also serve the grantor by certified mail, return receipt requested, at least 20 days before the sale, along with any subordinate lienholder that gave notice of its lien at least 20 days before the sale. For residential consumer obligations, the West Virginia Consumer Credit and Protection Act adds a pre-acceleration notice of right to cure under W. Va. Code § 46A-2-106,¹⁷ giving the consumer at least ten days to cure — a right that disappears after three defaults. The trustee delivers a trustee's deed without warranty in the form prescribed by W. Va. Code § 38-1-6.¹⁸

2C. Redemption, court structure, and federal overlays

West Virginia provides no post-sale statutory right of redemption after a properly conducted trustee's sale. A borrower may reinstate or pay the debt before the sale, but once the sale completes, the trustee's deed is final — subject only to a one-year period under W. Va. Code § 38-1-4a¹⁹ to challenge a sale for procedural defects.

The court structure changed materially in 2022. The Intermediate Court of Appeals of West Virginia opened on July 1, 2022, created by Senate Bill 275 (2021) and codified at W. Va. Code § 51-11-4.²⁰ Civil appeals from a circuit court now generally proceed to the Intermediate Court of Appeals, with further discretionary review by the Supreme Court of Appeals of West Virginia — which remains the court of last resort despite the word "Appeals" in its name. Any description of West Virginia as having no intermediate appellate court is out of date for matters after June 30, 2022.

Federal law runs through the entire process. Under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.,⁵ and Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019), an entity engaged in no more than non-judicial foreclosure enforcement — which includes a West Virginia trustee's sale — is not a "debt collector" except for the limited purpose of § 1692f(6). Broader FDCPA duties attach where the entity also collects the underlying debt. The West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-1-101 et seq.,²¹ reaches HOA collection conduct, as the Supreme Court of Appeals held in Fleet v. Webber Springs Owners Association, Inc. (2015).²¹ The Servicemembers Civil Relief Act, 50 U.S.C. § 3901 et seq.,⁶ can stay a foreclosure against active-duty servicemembers, and the bankruptcy automatic stay under 11 U.S.C. § 362⁷ halts a sale on a bankruptcy filing.

Section 3 — The West Virginia HOA foreclosure procedural sequence

A. Lien establishment and recording

The association lien attaches automatically under W. Va. Code § 36B-3-116(a)¹⁰ when an assessment or fine becomes due — no filing required. For a WVUCIOA community, the lien secures assessments and, unless the declaration provides otherwise, related fees, late charges, fines, and interest. To preserve priority against subsequent purchasers for value without notice, § 36B-3-116(h)²² directs the association to record a notice of lien in the county commission clerk's office, including a description of the unit, the owners' names, the unpaid amount with due dates, and the recordation date. The six-month super-priority component under § 36B-3-116(b)³ primes a prior first security interest only for common-expense assessments based on the periodic budget for the six months before enforcement begins. By operation of § 36B-1-204,⁸ this lien framework applies both to WVUCIOA communities and to pre-1986 communities as to post-1986 events; condominiums under the Unit Property Act enforce assessment liens under W. Va. Code § 36A (Article 7) and their recorded declarations.

B. Pre-foreclosure notice and demand

Before enforcement begins, the association must give the owner notice under W. Va. Code § 36B-3-116(h),²² served as provided in § 56-2-1²³ or by registered or certified mail, return receipt requested, in a form reasonably calculated to inform the owner of liability. Where the delinquency qualifies as a consumer obligation and the community proceeds toward a power-of-sale foreclosure, the West Virginia Consumer Credit and Protection Act right-to-cure notice under W. Va. Code § 46A-2-106¹⁷ applies, giving at least ten days to cure before acceleration — a right the owner loses after three defaults. Associations and their counsel must also account for the FDCPA where a third-party collector contacts the owner, and for the WVCCPA's unfair-debt-collection provisions, which the Supreme Court of Appeals applied to HOA collection in Fleet v. Webber Springs.²¹ Recorded declarations frequently impose additional notice or demand steps beyond the statutory minimum, and those supplement the statute.

C. Trustee's sale procedure

Where the declaration or a separate deed of trust grants a power of sale, enforcement runs under W. Va. Code § 38-1-1 et seq.⁴ The beneficiary instructs the trustee, who — after default and satisfaction of conditions precedent under § 38-1-3¹⁵ — sets a sale date. The trustee publishes notice as a Class II legal advertisement under §§ 38-1-4 and 59-3-2,¹⁶ once a week for two successive weeks in a qualified county newspaper, and serves the grantor by certified mail at least 20 days before the sale, along with any subordinate lienholder that gave notice of its lien. The notice must state the time and place of sale, the parties to the deed, the deed's date and recording reference, a description of the property, and the terms of sale. The sale is a public auction to the highest bidder; the trustee then delivers a trustee's deed without warranty under § 38-1-6.¹⁸ A purchaser at the sale takes free of defects in notice to subordinate lienholders if a bona fide purchaser for value. This procedure applies to both WVUCIOA communities and Unit Property Act condominiums where a power of sale exists; without a power of sale, the association must pursue judicial enforcement.

D. Post-sale rights and remedies

West Virginia provides no post-sale statutory redemption following a trustee's sale — the trustee's deed is final, subject only to a one-year window under W. Va. Code § 38-1-4a¹⁹ to set aside the sale for procedural defect. The trustee applies sale proceeds under W. Va. Code § 38-1-7,²⁴ first to the expenses of executing the trust (including the statutory trustee commission), then to the secured debts in order of priority, with any surplus paid to the grantor. Junior liens not satisfied from the proceeds are extinguished as to the property if the junior lienholder received proper notice. A purchaser who takes title must separately pursue eviction to obtain possession — the trustee owes no duty to remove occupants. Deficiency judgments are permitted, although under § 38-1-7(b)²⁵ a debtor may not defend a deficiency action on the ground that the sale failed to obtain fair market value. These post-sale rules apply uniformly to WVUCIOA and Unit Property Act communities proceeding by trustee's sale.

Section 4 — Recent legislative and judicial activity

A. Recent bills

No bill enacted in the past 24 months amended WVUCIOA (§ 36B), the Unit Property Act (§ 36A), the assessment-lien super-priority (§ 36B-3-116), or trustee's-sale practice (§ 38-1). The one in-scope measure in the 2025 Regular Session, House Bill 3377,²⁶ did not become law; it does not appear on the West Virginia Legislature's 2025 "Bills Completed Legislative Action" list, and the 2025 "Code Affected" index contains no entry for § 36B, § 36A, or § 38-1.

B. Recent rulings

West Virginia's appellate courts are working through a significant dispute over whether a major resort community falls under WVUCIOA and whether its assessment process passes muster under that statute. The two Justice Holdings decisions define the current landscape.

C. Active legislative debates

Developer concerns about WVUCIOA's requirements have surfaced repeatedly in the legislature, including a 2023 effort through House Bill 3558 to exempt certain communities, along with a related study resolution. No exemption or super-priority change has been enacted. The newly operational Intermediate Court of Appeals may begin generating HOA-related civil decisions as appeals from circuit courts mature through the new appellate structure.

Section 5 — National positioning and related coverage

West Virginia stands among the nine states that adopted the Uniform Common Interest Ownership Act, per the Community Associations Institute — the 1982 version in Alaska, Colorado, Minnesota, Nevada, and West Virginia, and the 2008 version in Connecticut, Delaware, Vermont, and Washington. West Virginia's six-month assessment-lien super-priority matches its 1982-version peers Colorado and Minnesota and its 2008-version peers Connecticut, Delaware, Vermont, and Washington. It contrasts with Nevada's nine-month super-priority under NRS 116.3116, which the Nevada Supreme Court in SFR Investments Pool 1 v. U.S. Bank, 334 P.3d 408 (Nev. 2014),²⁹ held grants "true lien priority" capable of extinguishing a prior first deed of trust. It also stands apart from non-UCIOA states that rely on older condominium or planned-community statutes.

Unlike judicial-foreclosure states, West Virginia enforces predominantly through the non-judicial trustee's sale and offers no post-sale redemption, making the process comparatively fast. The addition of the Intermediate Court of Appeals in 2022²⁰ means civil HOA appeals now route through an intermediate tier before reaching the Supreme Court of Appeals — a structural change that multi-state operators should factor into litigation timelines. For operators running portfolios across several states, the practical takeaway is that a West Virginia delinquency strategy should front-load the six-month super-priority calculation³ and the trustee's-sale calendar rather than count on a redemption backstop.

Practitioners should treat the recorded declaration as the operative supplement to the statute, confirm whether a community falls under WVUCIOA or the Unit Property Act before acting, and verify the existence of a power of sale before assuming a non-judicial path.

Recommendations

Stage 1 — Classify the community before any collection action. Determine whether the community is a WVUCIOA common interest community (created on or after July 1, 1986, or a preexisting community reached by W. Va. Code § 36B-1-204⁸) or a Unit Property Act condominium (W. Va. Code § 36A²) that elected coverage by recorded declaration. The classification dictates which lien and enforcement provisions apply. Threshold to change approach: if the declaration was recorded before July 1, 1986, confirm whether § 36B-3-116 reaches it as a post-effective-date event before relying on the super-priority.

Stage 2 — Calculate the six-month super-priority precisely. Isolate the common-expense assessments derived from the ratified periodic budget under § 36B-3-115(a)¹² for the six months immediately preceding the planned enforcement action. Exclude fines, late fees, interest, and collection costs from the super-priority figure — they remain part of the general lien but do not prime the first mortgage. Threshold to escalate: if the budget was not properly ratified, Justice Holdings I²⁸ shows a court may reject the assessment basis, so secure ratification documentation first.

Stage 3 — Confirm a power of sale, then run the trustee's-sale calendar. Verify that the declaration or a deed of trust grants a power of sale; without one, the only path is judicial enforcement. If a power of sale exists, build the timeline backward from the auction: Class II publication (two successive weeks under §§ 38-1-4 and 59-3-2¹⁶), certified-mail service on the grantor and noticed subordinate lienholders at least 20 days out, and, for consumer obligations, the § 46A-2-106¹⁷ ten-day right-to-cure notice. Threshold to pause: a bankruptcy filing (11 U.S.C. § 362⁷) or an SCRA-eligible servicemember (50 U.S.C. § 3901 et seq.⁶) stops the sale; confirm status before proceeding.

Stage 4 — Manage FDCPA and WVCCPA exposure. Where a third-party collector or law firm both forecloses and collects the underlying debt, Obduskey⁵ does not shield it from full FDCPA duties, and Fleet v. Webber Springs²¹ confirms WVCCPA unfair-debt-collection rules apply to HOA collection. Keep collection communications compliant rather than relying on the non-judicial-foreclosure safe harbor.

Stage 5 — Plan for finality and possession. Because there is no post-sale redemption, the trustee's deed delivers final title (subject to the one-year defect window under § 38-1-4a¹⁹), but the purchaser must separately pursue eviction. Account for deficiency exposure and surplus distribution under § 38-1-7.²⁴

Caveats

• Bill-status caching limitation. The conclusion that HB 3377 (2025) failed and that no 2024–2026 bill amended § 36B, § 36A, or § 38-1 is verified for the 2025 session via the Legislature's official "Bills Completed Legislative Action" and "Code Affected" indexes. The per-bill history endpoint returned cached pages, and the 2024 and 2026 "Code Affected" indexes could not be independently rendered; the no-amendment conclusion for those two years rests on the unchanged statutory text (FindLaw lists § 36B-3-116 as last updated January 1, 2024) and absence of contrary evidence, not on a clean index read. Re-verify against wvlegislature.gov before publication if the 2026 session record is material.
• Unit Property Act lien specifics. The continuing role of § 36A for elected condominiums is verified, but the exact article-7 lien-enforcement mechanics were not quoted section-by-section here; confirm the specific § 36A-7 provisions for any pre-UCIOA condominium matter.
• Conflicting secondary sources on redemption. Most sources, including Nolo and the Monroe County Clerk, confirm no post-sale redemption. One secondary source (Commoner Law) loosely described a "limited right of redemption" before sale confirmation; this conflates pre-sale reinstatement with post-sale redemption and finds no support in the statute. The primary-source position: there is no post-sale statutory redemption after a trustee's sale.
• Glade Springs litigation is unresolved. State ex rel. Justice Holdings v. Kirby (May 22, 2026) is a procedural mandamus requiring fuller findings; it does not finally decide lien validity, and the matter remains active. Treat its holding as procedural, not as a merits ruling on the super-priority.
• No HOA-specific super-priority appellate ruling. West Virginia's appellate case law construing the § 36B-3-116(b) six-month super-priority directly remains limited; the cited cases address UCIOA applicability and collection conduct rather than super-priority mechanics. The new Intermediate Court of Appeals may generate more specific precedent over time.

Footnotes

1. W. Va. Legislature, W. Va. Code § 36B-1-101 et seq., West Virginia Uniform Common Interest Ownership Act — Short title ↩
2. W. Va. Legislature, W. Va. Code § 36A-1-1 et seq., Unit Property Act — Short title ↩
3. W. Va. Legislature, W. Va. Code § 36B-3-116, Lien for assessments ↩
4. W. Va. Legislature, W. Va. Code § 38-1-1 et seq., Trust deeds — Sale on default ↩
5. 15 U.S.C. § 1692 et seq., Fair Debt Collection Practices Act; Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019) ↩
6. 50 U.S.C. § 3901 et seq., Servicemembers Civil Relief Act ↩
7. 11 U.S.C. § 362, Automatic stay ↩
8. W. Va. Legislature, W. Va. Code § 36B-1-204, Applicability to preexisting common interest communities ↩
9. W. Va. Legislature, W. Va. Code § 36A-4-1, Submission of property to this article ↩
10. W. Va. Legislature, W. Va. Code § 36B-3-116(a), Lien for assessments — attachment ↩
11. W. Va. Legislature, W. Va. Code § 36B-3-102(a)(10)–(12), Powers of unit owners' association ↩
12. W. Va. Legislature, W. Va. Code § 36B-3-115(a), Budgets ↩
13. W. Va. Legislature, W. Va. Code § 36B-3-116(d), Lien for assessments — statute of limitations ↩
14. W. Va. Legislature, W. Va. Code § 36B-3-116(f), Lien for assessments — attorney's fees ↩
15. W. Va. Legislature, W. Va. Code § 38-1-3, Sale by trustee — conditions precedent ↩
16. W. Va. Legislature, W. Va. Code § 38-1-4, Notice of sale; W. Va. Code § 59-3-2, Class II legal advertisement ↩
17. W. Va. Legislature, W. Va. Code § 46A-2-106, Right to cure default ↩
18. W. Va. Legislature, W. Va. Code § 38-1-6, Trustee's deed ↩
19. W. Va. Legislature, W. Va. Code § 38-1-4a, Challenge to sale — one-year limitation ↩
20. W. Va. Legislature, S.B. 275, 2021 Regular Session (creating Intermediate Court of Appeals); W. Va. Code § 51-11-4, Intermediate Court of Appeals — jurisdiction ↩
21. W. Va. Legislature, W. Va. Code § 46A-1-101 et seq., West Virginia Consumer Credit and Protection Act; Fleet v. Webber Springs Owners Ass'n, Inc., Supreme Court of Appeals of West Virginia (2015) ↩
22. W. Va. Legislature, W. Va. Code § 36B-3-116(h), Lien for assessments — recording notice ↩
23. W. Va. Legislature, W. Va. Code § 56-2-1, Service of process ↩
24. W. Va. Legislature, W. Va. Code § 38-1-7, Application of proceeds ↩
25. W. Va. Legislature, W. Va. Code § 38-1-7(b), Application of proceeds — deficiency ↩
26. W. Va. Legislature, H.B. 3377, 2025 Regular Session, Infrastructure Only Common Ownership Associations (failed) ↩
27. State ex rel. Justice Holdings, LLC v. Hon. Todd A. Kirby, No. 25-401, Supreme Court of Appeals of West Virginia (May 22, 2026) ↩
28. Justice Holdings, LLC v. Glade Springs Village Prop. Owners Ass'n, Inc., 250 W. Va. 563, 906 S.E.2d 216 (W. Va. 2023) ↩
29. SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408 (Nev. 2014) ↩