West Virginia HOA Fines: No Cap, But Notice, a Hearing and a Lien (W. Va. Code § 36B-3-102(a)(11))

The fining power sits in the list of association powers at W. Va. Code § 36B-3-102(a). The opening line of that subsection matters as much as paragraph (11) does: the powers belong to the association "even if unincorporated," but they are exercised "subject to the provisions of the declaration." A West Virginia declaration can therefore narrow the fining power, cap the amount, or add procedural steps, and the statute defers to it. What the declaration cannot do is remove the two conditions the Legislature attached, because those sit in the statute rather than in the recorded documents: the owner gets notice and an opportunity to be heard before the fine is levied, and the fine has to be reasonable.

West Virginia never wrote a fine schedule. There is no per-day maximum, no aggregate cap, no statutory cure period, and no requirement that the board warn an owner once before it fines. Chapter 36B also does not say who conducts the hearing or how many days of notice to give, which is why the association’s bylaws usually supply the timetable. "Reasonable" is the only ceiling, and it is a question a magistrate or circuit court answers case by case if the owner refuses to pay.

Not every West Virginia community is covered. Section 36B-1-203 carves out a planned community that contains no more than twelve units and is not subject to any development rights, and also one whose declaration provides that the annual average common expense liability of residential units, exclusive of optional user fees and insurance premiums, may not exceed $300 as adjusted under § 36B-1-114. Those communities are subject only to §§ 1-105, 1-106 and 1-107 unless the declaration says the entire chapter applies, so the fining power in § 36B-3-102(a)(11) does not reach them at all.

Older subdivisions are covered, with a wrinkle. Section 36B-1-204(a) lists the sections that reach common interest communities created in West Virginia before Chapter 36B took effect, and it names § 3-102(a)(1) through (6) and (11) through (16) along with § 3-116 (lien for assessments), § 3-118 (association records) and § 4-117. Those sections apply "only with respect to events and circumstances occurring after the effective date of this chapter" and do not invalidate provisions already in the declaration, bylaws, plats or plans. A subdivision platted in the 1970s therefore gets the notice-and-hearing requirement for conduct occurring now, while its own recorded restrictions survive intact.

An unpaid fine is not merely a debt. Under § 36B-3-116(a) the association has a lien on the unit for "fines imposed against its unit owner from the time the assessment or fine becomes due," and unless the declaration provides otherwise, fees, charges, late charges, fines and interest charged under § 3-102(a)(10), (11) and (12) are "enforceable as assessments under this section." That pulls a fine into the priority scheme in subsection (b), where the association lien is prior to everything except encumbrances recorded before the declaration, a first security interest recorded before the delinquency, and liens for real estate taxes and other governmental charges. It is also prior to that first security interest to the extent of the common expense assessments, based on the periodic budget adopted under § 3-115(a), that would have become due in the six months immediately preceding the action to enforce the lien.

Two features of § 36B-3-116 are distinctly West Virginian. Subsection (b) still carries the unfilled Uniform Act bracket, printed in the Code as an instruction to "insert appropriate reference to state homestead, dower and curtesy, or other exemptions," which the Legislature never completed. And subsection (h) sets out a perfection routine keyed to West Virginia procedure: notice to the owner in the manner set out in § 56-2-1 or by registered or certified mail, return receipt requested, then a recorded notice of lien in the office of the clerk of the county commission of any county where part of the condominium lies, containing a legally sufficient description of the unit, the names of the owners, the amount of unpaid assessments with the date each fell due, and the date of recordation. The clerk indexes the notice in the deed and lien books, and the cost of recordation is assessed against the owner if a later proceeding finds the delinquency. When the debt is paid the association records a release under § 38-12-1 at its own expense.

If you do not pay, the association may institute litigation in its own name against you for dues or assessments that are overdue or in arrears under § 36B-3-102(a)(17), or move to enforce the lien on the unit. Section 36B-3-116(d) gives it three years from the date the full amount became due to institute enforcement proceedings, after which the lien for those unpaid assessments is extinguished; subsection (e) preserves an ordinary action to recover the money and lets the association take a deed in lieu of foreclosure. A judgment or decree in a lien action "must include costs and reasonable attorney’s fees for the prevailing party" under § 36B-3-116(f), which cuts both ways: an owner who defeats the lien is entitled to fees as well.

An owner fined without the notice and hearing that § 36B-3-102(a)(11) requires is a person adversely affected by a failure to comply with Chapter 36B, and § 36B-4-117 gives that person "a claim for appropriate relief," permits punitive damages for a willful failure to comply, and allows the court to award reasonable attorney’s fees in an appropriate case. Before litigating, ask in writing for the payoff figure: § 36B-3-116(g) requires the association to furnish a statement of the amount of unpaid assessments against the unit within ten business days after receipt of the request, in recordable form if the unit is real estate, and that statement is binding on the association, the executive board and every unit owner.