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Charlottesville lawsuit against University Village tests state condo law

The board of one of the area’s most prominent retirement communities finds itself at war with a resident who wants to block the facility’s planned expansion.

In May, Daniel C. Lavering sued the University Village Owners Association, alleging that it had no right to build its Phase III development and claiming that plan would harm his rights as a condo owner in Phase II.

"The code makes clear," said his lawyer in an Albemarle Circuit Court hearing last week. "it’s only the declarant that has the right to expand the association."

That could prove difficult. The declarant was the original developer who sold the place and has since died. The facility is now run by a board of resident directors who are attempting to fend off the lawsuit and add 40-50 additional units in a third wing.

Located atop a verdant hill off Old Ivy Road just past the western city limits, the green-roofed University Village currently has 94 two-bedroom condominiums in two six-story, brick-skinned wings that spike out from a central core.

The site’s 360-degree views and roster of amenities have drawn a list of residents that reads like a who’s who of capitalism and philanthropy. One resident, for instance, recently announced a $50 million gift to the University of Virginia.

Despite the name, University Village is privately owned and Phase III was always envisioned for this 28-acre property. However, Lavering contends that that Virginia condo law is crystal clear that the association no longer holds that right.

In filings with the Albemarle County Circuit Court, he asserts that the association’s board had seven years from the filing of its inception papers in January 1991 to expand. Once that time passed, he claims that the expansion right expired unless 100% of owners agree.

The association, however, claims that only 67% of the owners must agree. This defense attempts, through its "plea in bar," to reduce the litigation to a single issue that Lavering is at least two decades late in making his claims.

"This cause of action," writes the association, "is barred by a one-year statute of limitations."

The association’s filing goes on to note the doctrine of estoppel and of latches, two legal principles of precedent-based law known as common law, forbid a claim when the claimant allowed the alleged infringement to pass without complaint.

But Lavering contends that common law is no match for condo law. He cites the Virginia Condominium Act that dates back to 1962 when Virginia became one of the first states to recognize the condominium form of ownership, which decreed the act alone would control condo development.

"Condo ownership is entirely a statutory creation," said Lavering’s lawyer, John Simpson, in the Oct. 19 hearing.

Phase I was completed in 1992 under original owner S.W. "Bill" Heischman, who sold to another owner who completed Phase II in 1994 before selling its stake to the association. Heischman died in 2003.

Lavering claims that Phase III will devalue both his condo and the overall marketability of the community, which has multiple penthouse-level dining rooms and bills itself as "the ultimate adult living experience."

It appears that Phase III could curtail some of the panoramic views and also dilute each current owner’s share of the vote in association elections.

Lavering claims in his complaint that adding new units also means that he’ll own a smaller share of the "common elements." That could cause a busier library, longer waits for lanes at the 75-foot indoor pool, an overcrowded hot tub, and perhaps a waiting list for a spot on the croquet court or the raised-bed garden.

Lavering’s lawyer filed the case not as a traditional lawsuit for a jury to judge but a motion asking the judge for "declaratory judgement." That means that the courtroom drama consists largely of legal arguments before Judge Cheryl Higgins.

The most vehement part of the hearing was Simpson’s assertion that the association’s attorney refused to respond to the suit in good faith, what he called "gamesmanship." Many of the answers submitted in the legal reply by opposing counsel Marla J. Diaz of Falls Church were neither the usual "deny" or "admit." Instead, she typically suggested that an answer required a legal conclusion or a required a look at another document.

"This was a deliberate attempt to avoid and evade answering," said a clearly irritated Simpson. "Why do you do that if you’re confident that you’re right?"

However, an unruffled Diaz chose not to defend her lawyering but instead to focus on her side’s beefs.

"We don’t think either of their motions are appropriate," Diaz fired back. Diaz also called the plaintiff’s initial decision not to file all of the original association documents with the court "just an effort to incur costs."

Diaz did seem to lose some of the judge’s favor when she claimed that Phase III isn’t really a plan because no board vote has yet been taken.

"It’s a little disingenuous to say they don’t have a plan," scolded Higgins, noting that architects and lawyers have already been paid to develop Phase III. "By the time it gets to a vote, the harm will have been done."

David Heilberg, a lawyer not involved in the case, says that property litigation such as this is typically expensive for both sides and can also be mentally taxing.

"People are very emotional about their property and their property rights," he noted.

Judge Higgins declined to dismiss the suit as the association had requested. But she did hand the Association one victory in the form of granting the group’s effort to focus the suit on the questions of whether Lavering is properly reading the condo act and whether he waited too long in asserting his right to challenge the expansion plans.

Court documents indicate one factual issue that could become a sticking point. Lavering bought his condo in 2004. That was five years after the association purchased the land for the expansion and announced its intention to build upon it.

No date has been set for the next hearing.

One thing the judge did do for Lavering was grant his request to probe the association with additional questions.

Source: www.dailyprogress.com

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