Harvey Bellomy and Nancy Bellomy v. Falcon Ridge Unit Owners' Association, Inc

No. 25-ICA-279 – Harvey Bellomy and Nancy Bellomy v. Falcon Ridge Unit Owners’
Association, Inc. FILED
June 10, 2026
released at 3:00 p.m.
WHITE, Judge, dissenting: ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

I respectfully dissent from that portion of the majority opinion holding that

the Falcon Ridge Declaration of Covenants and Restrictions is unenforceable as to the

Bellomys’ property.

I agree with the majority that the record presents a significant problem. The

declaration references “Schedule A-1” as the document identifying the property included

within the common-interest community, yet Schedule A-1 does not appear in the record

before this Court. I further agree that West Virginia Code § 36B-2-105(a)(3) requires a

declaration to contain a legally sufficient description of the real estate included within the

common-interest community.

I disagree, however, that the omission of Schedule A-1 renders the

declaration unenforceable as a matter of law.

The Uniform Common Interest Ownership Act (“the Uniform Act”)

prescribes the contents of a declaration. It does not provide that a declaration becomes void

or unenforceable whenever one of those requirements is imperfectly satisfied. Nor am I

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aware of any decision of our Supreme Court holding that a recorded declaration becomes

unenforceable as a matter of law because of a deficiency of this nature.

The absence of Schedule A-1 creates uncertainty concerning the scope of the

declaration, not its existence. The declaration was recorded and plainly reflects an intent to

create a common-interest community. The question presented by the missing exhibit is

what property was intended to be included within that development.

For that reason, I find Jubb v. Letterle, 185 W. Va. 239, 406 S.E.2d 465

(1991), instructive. Although Jubb did not arise under the Uniform Act, it addressed

uncertainty concerning the property affected by recorded restrictions. There, the Supreme

Court held that “[t]he fundamental rule in construing covenants and restrictive agreements

is that the intention of the parties governs.” Syl. Pt. 3, in part, id. The Court explained that

such intent is gathered from the instrument itself, the surrounding circumstances, and the

objects the covenant was designed to accomplish.

The majority correctly observes that Jubb did not address the statutory

requirements for creating a common-interest community. Nonetheless, nothing in the

Uniform Act suggests that the principles recognized in Jubb are inapplicable where

uncertainty exists concerning the property subject to a recorded declaration.

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The record reflects that some deeds within Falcon Ridge specifically

referenced the declaration and expressly subjected identified lots to its restrictions, while

others did not. The record also reflects a longstanding course of conduct concerning the

development and use of property within Falcon Ridge. Whether those facts establish that

particular tracts were intended to be included within the declaration is not a question that

can be resolved solely by reference to the missing exhibit.

Rather, the missing exhibit creates an ambiguity that should be resolved by

the circuit court through examination of the declaration, subdivision plats, chains of title,

prior conveyances, and other competent evidence bearing upon the intent of the declarant

and subsequent parties.

Whether the Bellomys’ property was intended to be included within the

declaration is a question the present record does not answer with certainty. That

determination should be made by the circuit court after considering the relevant evidence

and making the necessary factual findings. Because I would remand for that purpose rather

than hold the declaration unenforceable as a matter of law, I respectfully dissent.

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