2006 Code of Virginia § 55-79.83 - Liability for common expenses

55-79.83. Liability for common expenses.

A. Except to the extent that the condominium instruments provide otherwise,any common expenses associated with the maintenance, repair, renovation,restoration, or replacement of any limited common element shall be speciallyassessed against the condominium unit to which that limited common elementwas assigned at the time such expenses were made or incurred. If the limitedcommon element involved was assigned at that time to more than onecondominium unit, however, such expenses shall be specially assessed againsteach such condominium unit equally so that the total of such specialassessments equals the total of such expenses, except to the extent that thecondominium instruments provide otherwise.

B. To the extent that the condominium instruments expressly so provide, anyother common expenses benefiting less than all of the condominium units, orcaused by the conduct of less than all those entitled to occupy the same orby their licensees or invitees, shall be specially assessed against thecondominium unit or units involved, in accordance with such reasonableprovisions as the condominium instruments may make for such cases. Theexecutive organ may impose reasonable user fees.

C. To the extent that the condominium instruments expressly so provide, (i)any common expenses paid or incurred in making available the same off-siteamenities or paid subscription television service to some or all of the unitowners shall be assessed equally against the condominium units involved and(ii) any common expenses paid or incurred in providing metered utilityservices to some or all of the units shall be assessed against eachcondominium unit involved based on its actual consumption of such services.

D. The amount of all common expenses not specially assessed pursuant tosubsection A, B, or C hereof shall be assessed against the condominium unitsin proportion to the number of votes in the unit owners' associationappertaining to each such unit, or, if such votes were allocated as providedin subsection B of 55-79.77, those common expense assessments shall beeither in proportion to those votes or in proportion to the units' respectiveundivided interests in the common elements, whichever basis the condominiuminstruments specify. Such assessments shall be made by the unit owners'association annually, or more often if the condominium instruments soprovide. No change in the number of votes in the unit owners' associationappertaining to any condominium unit shall enlarge, diminish, or otherwiseaffect any liabilities arising from assessments made prior to such change.

E. Except to the extent otherwise provided in the condominium instruments, ifthe executive organ determines that the assessments levied by the unitowners' association are insufficient to cover the common expenses of the unitowners' association, the executive organ shall have the authority to levy anadditional assessment against all of the units in proportion to theirrespective undivided interests in the common elements. The executive organshall give written notice of any additional assessment to the unit ownersstating the amount, reasons therefor, and the due date for payment of suchassessment. If the additional assessment is to be paid in a lump sum, paymentshall be due and payable no earlier than 90 days after delivery or mailing ofthe notice.

All unit owners shall be obligated to pay the additional assessment unlessthe unit owners by a majority of votes cast, in person or by proxy, at ameeting of the unit owners' association convened in accordance with theprovisions of the condominium instruments within 60 days of the delivery ormailing of the notice required by this subsection, rescind or reduce theadditional assessment. No director or officer of the unit owners' associationshall be liable for failure to perform his fiduciary duty if an additionalassessment for the funds necessary for the director or officer to perform hisfiduciary duty is rescinded by the unit owners' association in accordancewith this subsection. The unit owners' association shall indemnify suchdirector or officer against any damage resulting from any claimed breach offiduciary duty arising therefrom.

F. It remains the policy of this section that neither a unit owned by thedeclarant nor any other unit may be exempted from assessments made pursuantto this section by reason of the identity of the unit owner thereof.

G. All condominium instruments for condominiums created prior to January 1,1981, are hereby validated notwithstanding noncompliance with the firstsentence of subsection D hereof, if they provide instead that the amount ofall common expenses not specially assessed pursuant to subsection A, B or Chereof shall be assessed against the condominium units in proportion to theirrespective undivided interests in the common elements.

(1974, c. 416; 1977, c. 428; 1981, c. 180; 1984, cc. 27, 84, 601; 1992, c.72; 1993, c. 667; 2003, c. 421.)