Virginia Lawyers Weekly//May 9, 2023
Virginia Lawyers Weekly//May 9, 2023//
Where appellant condominium association reallocated parking spaces, the trial court correctly concluded that appellant breached its contract with appellee and violated Virginia’s Condominium Act and a county zoning law.
Statement of the case
“Following a bench trial in the Fairfax County Circuit Court (trial court), Telegraph Square II Condominium Owners Association (‘appellant’ or the ‘Condominium Association’) appeals from the trial court’s judgment for the plaintiff, 7205 Telegraph Square, LLC (‘appellee-plaintiff’ or ‘7205 Telegraph’), on all four counts of appellee-plaintiff’s second amended complaint.
“7205 Telegraph owns all three commercial condominium units in Phase IV of the Condominium Association’s development in Fairfax County (the Condominium).
“The trial court held that the Condominium Association breached its contract with 7205 Telegraph, violated the Condominium Act, Code §§ 55.1-1900 through 55.1-1995, and violated Fairfax County zoning ordinances when it excluded 7205 Telegraph from all common elements in Phase I of the Condominium – including the parking lot – by assigning all common elements in Phase I exclusively to Phase I unit owners.
“The Condominium Association contends on appeal that the trial court erred in:
“(1) finding that the Condominium Association’s new parking regime violated the Fairfax County zoning ordinance,
“(2) finding that the new parking regime proximately caused 7205 Telegraph to lose a tenant,
“(3) awarding lost-rent contract damages based on 7205 Telegraph’s loss of a tenant because those damages were speculative, consequential damages foreclosed by Virginia law,
“(4) failing to address the Condominium Association’s mitigation of damages defense, and
“(5) ruling that 7205 Telegraph was (i) improperly assessed fees for the use, maintenance, and repair of Phase I common elements and (ii) entitled to attorney fees as the prevailing party.
“Upon review, this Court finds no error and affirms the trial court’s judgment.”
“The trial court did not err in holding that the Condominium Association’s 2015 parking re-allocation violated both the Condominium Act and the Condominium Instruments by improperly converting the Phase I common element parking into limited common elements for the exclusive use of Phase I unit owners.
“The trial court also did not err in holding that the Condominium Association violated the Condominium Instruments by failing to comply with all zoning ordinances with respect to any portion of the Condominium when it limited 7205 Telegraph’s parking to the 12 Phase IV parking spaces [instead of the required 30], resulting in 7205 Telegraph having access to fewer parking spaces than required by the Fairfax County zoning ordinance.
“Additionally, the trial court did not err in finding that the 2015 parking re-allocation breached the Condominium Association’s obligations under the Condominium Instruments and proximately caused 7205 Telegraph to lose a commercial tenant and suffer lost-rent contract damages.
“Therefore, this Court finds no error in the trial court’s award of damages and attorney fees to 7205 Telegraph.”
Telegraph Square II, a Condominium Unit Owners Ass’n v. 7205 Telegraph Square, Record No. 0222-22-4, April 25, 2023. CAV (published opinion) (Chaney; Ortiz, concurring in part and dissenting in part). From the Circuit Court of Fairfax County (Bellows). Ted A. Hages for appellant. David C. Gutkowski for appellee. Amicus Curiae: Washington Metropolitan Chapter Community Associations Institute. VLW 023-7-149, 38 pp.