West Virginia Supreme Court upholds equal HOA assessments on an unimproved lot
West Virginia Supreme Court upholds equal HOA assessments on an unimproved lot
2026-10-05 · West Virginia · Courts
What happened. On July 28, 2026, the Supreme Court of Appeals of West Virginia affirmed a judgment requiring the owner of an unimproved lot in White Rock Mountain Retreat, a planned community in Greenbrier County, to pay three years of unpaid association assessments. The lot owner had argued that a vacant lot should not be charged the same as a lot with a house on it.1
The dispute
The Retreat's declaration of covenants provides for annual assessments and the association charged every owner the same amount, without distinguishing between lot types. For 2019, 2020 and 2021 each owner was assessed $1,500. The owner of Lot 105, Withrow Landing, did not pay, and the association sued in Greenbrier County magistrate court for $4,500 in assessments plus $2,044.21 in interest and $1,795.50 in attorney fees, a total of $8,339.71. The magistrate ruled for the association; the circuit court reached the same result after a new trial; and the Intermediate Court of Appeals affirmed in September 2024.1
What the Court decided
The owner relied on the state's common-interest statute, which says that, to the extent required by the declaration, any common expense benefiting fewer than all units must be assessed only against the units benefited.2 The Court found no reversible error: it held that the Retreat's covenants allowed assessments in the same amount for improved and unimproved lots, and that the owner had not paid the assessments for the three years at issue. The decision is a memorandum decision, issued without oral argument, with all five justices concurring.1
Why the statute did not decide it
The key phrase in W. Va. Code § 36B-3-115(c) is its opening condition: the benefit-based allocation rules in subsection (c) apply "to the extent required by the declaration." Outside those exceptions, subsection (b) of the same section says common expenses are assessed against all units according to the allocations the declaration sets under § 36B-2-107.2 In this case the lower courts found that the Retreat's covenants did not require any distinction between improved and unimproved lots, so the statutory exception was never triggered.1 The outcome turned on what this community's declaration says, not on a general rule that vacant lots always pay the same as built lots.
The argument the Court did not reach
The owner also argued that the assessment procedure and the assessments themselves were unconscionable. Both the Intermediate Court of Appeals and the Supreme Court declined to consider that argument because it had not been raised in the circuit court. The Court cited the general rule that legal theories must be raised properly in the lower court to be preserved for appeal. Whether equal assessments on unimproved lots could ever be unconscionable under West Virginia law was therefore left unaddressed.1
What the judgment covered
The circuit court's judgment, now final on appeal, included the unpaid assessments, interest, and attorney fees totaling $8,339.71, plus post-judgment statutory interest from October 13, 2022, $95 in costs, and permitted post-judgment costs. 1 Separately, W. Va. Code § 36B-3-115(b) provides that a past-due common expense assessment "bears interest at the rate established by the association not exceeding eighteen percent per year."2
The form of the decision
The Court decided the appeal by memorandum decision under Rule 21(c) of the West Virginia Rules of Appellate Procedure, without oral argument, after finding "no substantial question of law and no prejudicial error."1 Its holding is tied to the Retreat's own covenants, which the Court found allowed assessments in the same amount for improved and unimproved lots.1
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