January 12, 2023
Many people would beam with excitement if someone told them that a new metro station will pop up within a mile of their property. If they have a condominium or cooperative, their home ownership is full of surprises because they are in a business relationship with strangers. Are new rail stations good or bad for neighboring condo unit owners? Decades ago, the Northern Virginia communities of Tysons, Reston, Herndon, Dulles and Ashburn developed around transportation infrastructure that allowed residents to easily commute to Washington, D.C.. Local streets and the Dulles Toll Road connected these homeowners to Metro’s orange line. The lower density in these communities reflected demand for quiet neighborhoods and the lack of immediate rail transport. In time, the region suffered a crush of automobile traffic. Addition of housing congests key roads. Regional leaders teamed together to bring in the silver line. Opening in 2014, Phase 1 extended the metro from Falls Church to Tysons Corner and portions of Reston. Phase 2 extended to Herndon, Dulles Airport and Ashburn. Phase 2 opened in November 2022. The extension of the silver line did more than allow more people to access public transportation closer to their homes. This new infrastructure impacted the property owners whose properties are within walking distance. Such lands became significantly more valuable. The silver line prompted local government to change the way they regulate development. Because of rail extension, more density became possible. Anyone who drives along the Dulles toll road or elsewhere along the sliver line can see construction cranes and large trucks bringing materials.
Construction of Silver Line Rail Stations: A casual observer might conclude that these changes present a financial windfall (or at least a new convenience) to anyone with land located within a mile of any new station. However, reality it is not so simple when you have dozens or hundreds of co-owners. Decades ago, many properties in Tysons, Reston, Herndon, and Ashburn were developed as residential or commercial condominiums. The builders did not plan for the construction of new metro stations where they now appear. Most of the owners who purchased units in these condominium associations did not anticipate how the addition of a metro station would later change their communities. Many of these condominium unit owners rely upon their units as their primary housing or business location. As families and businesses grow, they become more settled in. Humans naturally resist being kicked out to suit the interests of others.
Other people have their own reasons for wanting to embrace the changes. Some unit owners may already be ready to sell. Potential buyers see old buildings cluttering valuable land. Redevelopment may add taller buildings.
This tends to divide condominium associations into factions. Many unit owners want to go using the properties they chose to buy, and do not want to be pushed out. Successful people purchase their homes or locate their businesses for thoughtful reasons. There are specific reasons why a particular condo unit might be ideal for aging in place. If they wanted a temporary arrangement, they would have just signed a lease. When developers eye these pieces of land that happen to have people living or working in them, there are usually some association members who would rather sell the property to a developer now at market rates. Some see no reason to continue to maintain the aging structures as neighboring buildings are torn down and holes are filled with newer, larger buildings. However, there are numerous reasons why a unit owner’s share of the proceeds of a termination sale might be inadequate. For example, specialized health professions require expensive buildouts to make use of generic condominium units. County planners don’t really understand the value of or needs of “light industrial” land uses.
Dramatic Assessment Increases: For silver line condominium unit owners, the construction of the rail stations is not the only complication. In 2022, the General Assembly directed the Department of Professions and Occupational Regulation to establish a Work Group to develop recommended legal reforms for condominiums and HOAs. The legislature did this out of a concern that many communities need major renovations to avoid structural failure or repairs to present building system failure. On November 23, 2022, I posted an article to this blog, “Virginia Structural Integrity and Reserves Work Group.” The work group will probably recommend reforms which will lubricate the process of condominium termination, sales, and deconversion. Also, the Work Group will probably recommend legal reforms that will encourage boards to collect more money and spend that money on capital improvement projects. If fulfillment of such requirements is opposed or unsuccessful, many communities may slide towards condominium termination.
Problem of Inflation: Things are more expensive now. While the Washington, D.C. metro area has a strong real estate market, inflation impacts condominiums more than single family houses. Rising interest rates put downward pressure on sales. Inflation drives up the cost of labor and materials for construction projects. My June 6, 2022 blog post, “Renovation of Condominium Limited Common Elements” discusses how such projects are financed and managed.
Baby Boomers on the Move: The perfect storm has yet another factor. Many baby boomers have already retired or are planning to change their careers. When workers retire or shift their careers into a new phase, their interests in property refocuses. The nature of condominium unit ownership presents particular challenges to retirement age owners, which I discussed in my October 20, 2022, post, “Are Condominium Units Good for Retirement-Age Buyers.”
How Condominium Termination Rules Work: Condominium law provides procedures to bring an end to the condominium, sell the entire property and split the proceeds. This is called condominium termination or deconversion. What many people don’t understand is that if a certain amount of support exists, then the opposing unit owners can be kicked out of their units and given a share of the sale that was not negotiated with their consent. I blogged in more detail about the mechanics of condo termination in a May 14, 2015 post, “You May Be Targeted for Condominium Termination” and on February 6, 2020, “Proposed Virginia Legislation Would Empower Developers to Oppress Rights of Unit Owners in Sale of Terminated Condominium Developments.” The statutes provide few protections to insure that unit owners will obtain fair market value in termination or other considerations of their unique situation. The developer and their friends on the board tend to “drive the bus.” The statutes assume that free-market forces and the democratic governance of the association will protect the unit owners rights. However, the business of a community association is rife with conflicts of interest. Depending upon how the termination is conducted, an individual unit owner may experience a windfall or, in some cases, financial ruin.
The Virginia Condominium Act (Va. Code § 55.1-1937) provides “default” termination procedures. In residential developments, termination requires a 4/5 (80%) agreement among unit owners, or such larger majority as the instruments may specify. If no units are residential, the instruments May specify a majority smaller than 4/5 (80%). Termination is achieved by a written contract that provides for the termination of the condominium association, the sale of the property to the buyer, and the disposition of the proceeds. The real estate industry succeeded in convincing the General Assembly to streamline condominium termination to make it easier to force the sale of the units. Things get complicated when the unit owner has a mortgage that exceeds the value of the proceeds for that unit or a long-term lease.
As interest in deconversion grows, the proponents may try to use nondisclosure agreements to control the flow of information. The proponents of termination may seek to amend the declaration or bylaws to facilitate termination. Officers or directors favoring termination sale may neglect repairs or allow reserves to deplete, or they may aggressively pursue renovations because that increases the purchase value of the property. Typically interested purchasers will buy at least one unit so that they can participate in the meetings of the association as a member, or they will work closely with allied members. This can disrupt ordinary life and interfere with a family’s ability to make plans.
What can unit owners whose condominiums are located near a new rail station do to protect their interests? There are many options, including:
- Selling one’s unit before change accelerates.
- Communicating with one’s state or county elected officials about pending or anticipated legislation or ordinances.
- Litigation with the condominium association if they breach the statutes or bylaws.
- Developing alliances with other unit owners to elect friendly directors, put pressure on the board, or bring certain petitions for vote by the membership at a special meeting.
- Stay informed about things that are happening in the community.
Are new rail stations good or bad for neighboring condo unit owners? There will be loud, poorly informed voices in the community that will make themselves heard. If a condominium association is going through a major dispute or transition related to capital improvements, special assessments or a termination, such matters are usually too complicated to handle on one’s own, because there are multiple technical issues. On the legal side, an attorney is necessary to review the declaration, bylaws, amendments and the statutes to determine if what the proponents or an amendment or termination agreement is legal. Cowherd PLC leverages experience in these matters so that the unit owners can protect their own interests in an ecosystem where large groups of people and money can threaten their plans and peace of mind.
