University Commons Riverside Home Owners v. University Commons Morgantown, et al.

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The circuit court of Monongalia County certifies six questions to the Court regarding an action brought by a condominium owners' association, on its own behalf and on behalf of the individual condominium owners, against defendants who designed, constructed, and marketed the condominium complex. All six questions address the West Virginia Common Interest Ownership Act ("COIA"), West Virginia Code §36B-3-101 to -119.

Question One: Is a unit owner's association an adequate representative when a lawsuit is instituted by the unit owners' association on behalf of two or more unit owners pursuant to West Virginia Code §36B-3-102(a)(4) and the damages sought include "unit specific" damages affecting only individual units?
Answer: No. "The [circuit court concluded] that the homeowners are not adequately represented by the association because the parties could have conflicting interests."

Question Two: Pursuant to West Virginia Code §36B-3-102(a)(4), what constitutes a "matter affecting the common interest community" and what constitutes a "unit specific" element?
Answer: West Virginia Code §36B-1-103(7) defines "common interest community" as "real estate with respect to which a person, by virtue of his ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance or improvement of other real estate described in a declaration…." Subsection 36B-3-107 states that an owners' association "is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for the maintenance, repair, and replacement of his unit."

Question Three: If the unit owners' association is adequate representation to institute litigation pursuant to West Virginia Code §36B-3-102(a)(4) on behalf of individual unit owners for unit specific damages affecting only individual units, is a unit owner nevertheless a necessary and indispensable party pursuant to Rule 19 of the Rules of Civil Procedure?
Answer: Yes.

Question Four: If the individual unit owners are not joined pursuant to Rule 19, does the unit owners' association have the authority under West Virginia Code §36B-3-102(a)(4) to settle and release any and all claims of the unit owners where the individual unit owners have been provided reasonable notice of and have made no objection to a settlement and release? If so, what constitutes sufficient notice?
Answer: No.

Question Five: Whether matters pertaining to unit owners' claims for lost rent or inability to rent are matters that affect the common interest community for which the unit owners' association may institute litigation pursuant to West Virginia Code §36B-3-102(a)(4)?
Answer: No

Question Six: Is a representative example of unit owners sufficient to offer deposition testimony and trial testimony in this matter to establish defects and damages that are common to all units?
Answer. No.