SD5 - Revision of Title 55 of the Code of Virginia
Title 55 (Property and Conveyances) contains provisions of the Code of Virginia that address property in the Commonwealth, including the conveyance of real estate and rental property, the settlement and recordation of real estate, and common interest communities found in the Commonwealth.
Title 55 has not been revised since the adoption of the Code of Virginia of 1950, at which time the title consisted of 18 chapters. In the ensuing 68 Regular Sessions of the General Assembly, 26 chapters have been added and seven have been repealed, resulting in the existing title, which comprises 37 current chapters. In the intervening years, the original organizational scheme has been compromised by the insertion of new chapters within or at the end of the title and by the insertion of new sections within or at the end of an existing chapter. It has become appropriate to (i) organize the laws in a more logical manner, (ii) remove obsolete and duplicative provisions, and (iii) improve the structure and clarity of statutes pertaining to real and personal property in the Commonwealth.
Organization of Proposed Title 55.1
Proposed Title 55.1 consists of 29 chapters divided into five proposed subtitles: Subtitle I (Property Conveyances), Subtitle II (Real Estate Settlements and Recordation), Subtitle III (Rental Conveyances), Subtitle IV (Common Interest Communities), and Subtitle V (Miscellaneous).
Subtitle I contains proposed Chapters 1 through 5, all of which pertain to real and personal property conveyances.
Proposed Chapter 1 (Creation and Limitation of Estates) includes provisions relating to the creation and transfer of estates. It contains sections from existing Chapter 1 (Creation and Limitation of Estates; Their Qualities) and existing Chapter 20 (Virginia Solar Easements Act). In addition, existing § 55-153, relating to removal of a cloud on title, is relocated from existing Chapter 8 to this proposed chapter.
Proposed Chapter 2 (Property Rights of Married Persons) contains provisions found in existing Chapter 3 (Property Rights of Married Women) addressing the property rights of married persons, including the section pertaining to the abolition of equitable separate estates. The name of proposed Chapter 2 and the proposed text of the chapter with regard to married women is updated to apply the chapter contents to all spouses, as opposed to just married women. See additional specifics regarding this chapter in the chapter drafting note.
Proposed Chapter 3 (Form and Effect of Deeds and Covenants; Liens) contains the provisions from of existing Chapter 4 of the same name, which addresses deeds, including deeds of trust, easements, and the satisfaction of security interest in real property.
Proposed Chapter 4 (Fraudulent and Voluntary Conveyances; Writings Necessary to Be Recorded) contains the provisions of existing Chapter 5 (Fraudulent and Voluntary Conveyances, Bulk and Conditional Sales, etc.; Writings Necessary to Be Recorded), which addresses certain void conveyances of real or personal property, including the authority of a court to set aside such a conveyance, as well as provisions governing the recording of certain contracts and deeds.
Proposed Chapter 5 (Commutation and Valuation of Certain Estates and Interests) contains the provisions of existing Article 2 (Commutation and Valuation of Certain Estates and Interests; Tables) of Chapter 15.
Subtitle II contains proposed Chapters 6 through 11, which include provisions governing the recordation and settlement of real estate, including various uniform acts enacted in Virginia relating to the requirements of such recording and settlement.
Proposed Chapter 6 (Recordation of Documents) contains the provisions of existing Chapter 6 of the same name, which governs the general process of the recordation of documents in the Commonwealth. This proposed chapter also contains three uniform acts enacted in Virginia: (i) the Uniform Recognition of Acknowledgments Act, currently found in existing Article 2.1 of Chapter 6; (ii) the Uniform Federal Lien Registration Act, currently found in existing Article 6 of Chapter 6; and (iii) the Uniform Real Property Electronic Recording Act, currently found in existing Article 7 of Chapter 6.
Proposed Chapter 7 (Virginia Residential Property Disclosure Act) contains the provisions of existing Chapter 27 of the same name, which pertains to certain required disclosures by owners of real residential property to potential purchasers of such property.
Proposed Chapter 8 (Exchange Facilitators Act) contains the provisions of existing Chapter 27.1 of the same name, which contains requirements for the activities of exchange facilitators, who are persons that for a fee enter into an agreement with a taxpayer to act as (i) a qualified intermediary in an exchange of like-kind property, (ii) an Exchange Accommodation Titleholder, or (iii) a qualified trustee or escrow holder.
Proposed Chapter 9 (Real Estate Settlements) contains the provisions of existing Chapter 27.2 of the same name, which contains provisions relating to the settlement of real estate in the Commonwealth, including the duties of a lender and settlement agent involved in such a settlement.
Proposed Chapter 10 (Real Estate Settlement Agents) contains the provisions of existing Chapter 27.3 of the same name, which outlines which persons may act as real estate settlement agents in the Commonwealth, along with the duties required of such agents.
Proposed Chapter 11 (Commercial Real Estate Broker's Lien Act) contains the provisions of existing Chapter 28 of the same name, which allows a commercial broker who provides licensed services resulting in the procuring of a tenant of commercial real estate to obtain a lien upon rent paid by the tenant.
Subtitle III contains proposed Chapters 12 through 17, all of which pertain to the conveyance of rental property in the Commonwealth.
Proposed Chapter 12 (Virginia Residential Landlord and Tenant Act) contains the provisions of existing Chapter 13.2 of the same name, which governs the rental of certain residential properties in the Commonwealth, including the duties and remedies of both the landlord of and the tenant renting such a property. In addition, existing Chapter 25 (Transfer of Deposits), a one-section chapter that pertains to the transfer of security deposits by the owner of rental property to a subsequent owner upon transfer of the rental property to such subsequent owner, is relocated to proposed Chapter 12 (and, with amendment, is included in Chapters 13 and 14).
Proposed Chapter 13 (Manufactured Home Lot Rental Act) contains the provisions of existing Chapter 13.3 of the same name, which governs the rental of manufactured home lots in the Commonwealth, including the rights and obligations of manufactured home park landlords and tenants. In addition, existing Chapter 25 (Transfer of Deposits), a one-section chapter that pertains to the transfer of security deposits by the owner of rental property to a subsequent owner upon transfer of the rental property to such subsequent owner, is amended as it relates to manufactured home lot rental and included in proposed Chapter 13.
Proposed Chapter 14 (Commercial Tenancies) contains certain provisions of existing Chapter 13 (Landlord and Tenant) that are applicable to nonresidential tenancies. Provisions of existing Chapter 13 that apply only to residential tenancies are proposed for repeal because, as a result of Chapter 730 of the Acts of Assembly of 2017 and Chapter 221 of the Acts of Assembly of 2018, they were made identical in substance to provisions in proposed Chapter 12. In addition, existing Chapter 25 (Transfer of Deposits), a one-section chapter that pertains to the transfer of security deposits by the owner of rental property to a subsequent owner upon transfer of the rental property to such subsequent owner, is amended as it relates to commercial tenancies and included in proposed Chapter 14.
Proposed Chapter 15 (Residential Ground Rent Act) contains the provisions of existing Article 4 of Chapter 4 of the same name, which governs the rent or charge paid for the use of land, whether or not title of such land is transferred to the user, or a lease of land, for personal residential purposes.
Proposed Chapter 16 (Deeds of Lease) contains the provisions of existing Article 1 (Form and Effect of Deeds and Leases) and existing Article 3 (Effect of Certain Expressions in Deeds and Leases) of Chapter 4 that relate specifically to deeds of lease, including the form of a deed of lease and certain covenants of a lessor and lessee to a lease.
Proposed Chapter 17 (Emblements) contains the provisions of existing Chapter 14 of the same name, which relates to the law of emblements, that is, annual crops produced by cultivation legally belonging to the tenant with the implied right for its harvest, and they are treated as the tenant's property.
Subtitle IV contains proposed Chapters 18 through 23, all of which pertain to common interest communities found within the Commonwealth.
Proposed Chapter 18 (Property Owners' Association Act) contains the provisions of existing Chapter 26 of the same name, including the applicability of the Act, resale disclosure requirements of property subject to the Act, and sections pertaining to the operation and management of such associations.
Proposed Chapter 19 (Virginia Condominium Act) contains the provisions of existing Chapter 4.2 (Condominium Act), which sets forth the rules governing property considered to be a condominium, including provisions setting forth the creation, alteration, and termination of a condominium, rules governing the management and sale of a condominium, and resale disclosure requirements for condominiums.
Proposed Chapter 20 (Horizontal Property Act) contains the provisions of existing Chapter 4.1 (Horizontal Property), which relates to developments established under a horizontal property regime. Numerous existing sections (§§ 55-79.16, 55-79.21, 55-79.21:2 through 55-79.31, and 55-79.33) pertaining to the protection of horizontal property purchasers are recommended for repeal as obsolete because as of July 1, 1974, the Horizontal Property Act was superseded by existing Chapter 4.2 (Condominium Act). As a result, no new developments may be established under a horizontal property regime, and protections for purchasers under this Act are no longer needed.
Proposed Chapter 21 (Virginia Real Estate Cooperative Act) contains the provisions of existing Chapter 24 of the same name, which pertains to real estate considered to be a cooperative in the Commonwealth, including the rules governing the creation, alteration, and termination of cooperatives; the management of cooperatives; the protection of cooperative purchasers; and the administration and registration of cooperatives.
Proposed Chapter 22 (Virginia Real Estate Time-Share Act) contains the provisions of existing Chapter 21 (The Virginia Real Estate Time-Share Act), which governs time-shares in the Commonwealth, including the creation, termination, and management of a time-share; the protection of purchasers of a time-share; and the financing, registration, and administration of a time-share.
Proposed Chapter 23 (Subdivided Land Sales Act) contains the provisions of existing Chapter 19 of the same name, which pertains to the subdivision of land into 100 or more lots that are sold or disposed of by land sales installment contracts and whose purchaser has access to common facilities and amenities for which annual dues are paid.
Subtitle V consists of proposed Chapters 24 through 29, all of which are currently contained in existing Title 55 and belong in proposed Title 55.1 but none of which logically fit within the context of the other subtitles previously outlined.
Proposed Chapter 24 (Escheats) contains the provisions of existing Chapter 10 (Escheats Generally), which pertains to the escheat to the Commonwealth of dormant and unclaimed property with no known owner.
Proposed Chapter 25 (Virginia Disposition of Unclaimed Property Act) contains the provisions of existing Chapter 11.1 (Disposition of Unclaimed Property), which pertains to the system in place in the Commonwealth for transferring to and holding by the Commonwealth of intangible or tangible personal property upon abandonment of such property.
Proposed Chapter 26 (Property Loaned to Museums) contains the provisions of existing Chapter 11.2 of the same name, which pertains to the loaning of property to museums in the Commonwealth, including the process by which the ownership of property that is loaned to museums is established.
Proposed Chapter 27 (Drift Property) contains the provisions of existing Chapter 11 (Estrays and Drift Property), which details the procedure by which a property owner who finds a stray animal or a boat or vessel adrift on his land may notify the court of the finding and through a proceeding obtain an appraisal of the value of the property. Existing §§ 55-202 through 55-206 of existing Chapter 11, addressing such procedures with respect to stray animals and abandoned watercrafts, are proposed for repeal because they are obsolete, as other procedures found in the Code and in common law address these situations according to modern practice. The title of proposed Chapter 27 reflects the remaining portion of the existing chapter.
Proposed Chapter 28 (Trespasses; Fences) contains the provisions of existing Chapter 18 of the same name, which relates to fences and boundaries, trespasses by animals, and damages for timber cutting.
Proposed Chapter 29 (Virginia Self-Service Storage Act) contains the provisions of existing Chapter 23 of the same name, which governs personal property stored within leased spaces at storage facilities in the Commonwealth.
Statutory Provisions Proposed for Repeal
During the revision process, the Code Commission became aware of a number of existing sections and an existing chapter that are either unnecessary or obsolete and have been stricken in this report; these are recommended for repeal and thus not included in the proposed title. Chapter drafting notes in the body of the report describe the reasons for the recommended repeal of the following chapter and sections:
• §§ 55-202 through 206.
• As previously noted, numerous provisions of existing Chapter 13 that apply only to residential tenancies are proposed to be repealed because, as a result of Chapter 730 of the Acts of Assembly of 2017 and Chapter 221 of the Acts of Assembly of 2018, they were made identical in substance to provisions in proposed Chapter 12. Such provisions are as follows: existing §§ 55-221.1 and 55-225.01 through 55-225.50 and subsections B, C, and D of existing § 55-243.
Other Affected Titles
The following chapters are relocated from existing Title 55 to other titles of the Code of Virginia:
• Chapter 9 (§ 55- 156 et seq.) (Assignments for Benefit of Creditors) is relocated as proposed Chapter 18.1 (§ 8.01-525.1 et seq.) of Title 8.01 (Civil Remedies and Procedure).
• Chapter 29 (§ 55-528 et seq.) (Common Interest Community Management Information Fund) is relocated as proposed Article 2 (§ 54.1-2354.1 et seq.) of Chapter 23.3 (Common Interest Communities) of Title 54.1 (Professions and Occupations).
• Chapter 2 (§ 55-26.1) (Educational, Literary and Charitable Gifts, Devises, Etc.) is relocated as one section, proposed § 57-6.1, within Article 1 (§ 57-3 et seq.) of Chapter 2 (Church Property; Benevolent Associations and Objects) of Title 57 (Religious and Charitable Matters; Cemeteries).
The following sections are relocated from existing Title 55 to other titles of the Code of Virginia:
• § 55-19.5, relating to certain types of trusts and Medicaid planning, located within existing Chapter 1 (§ 55-1 et seq.) is relocated to Article 2 (§ 64.1-102 et seq.) of Chapter 1 of Title 64.2 (Wills, Trusts, and Fiduciaries).
• §§ 55-227 through 55-237 of existing Chapter 13 (§ 55-217 et seq.) that contain provisions relating to a civil cause of action for recovering rent are relocated as proposed Article 13.1 (§ 8.01-130.1 et seq.) of Chapter 3 (Actions) of Title 8.01 (Civil Remedies and Procedure).
The following provisions are relocated from other titles of the Code of Virginia to proposed Title 55.1:
• The provisions of § 18.2-324.1, which provide that a violation of existing §§ 55-298.1 through 55-298.5 is a Class 1 misdemeanor, are moved to proposed § 55.1-2803 (existing § 55-298.5) of proposed Chapter 28 (Trespasses; Fences).
The relocation of sections, articles, and chapters to other titles of the Code of Virginia is not intended to have any substantive effect on their interpretation.
An outline of the organization of proposed Title 55.1 is included as Appendix A.
Technical Changes Made Throughout Title 55.1
Each section is followed by a drafting note describing any changes made in the section. If a section drafting note states "no change," the section contains no changes other than renumbering. If a drafting note states "technical changes," the section contains technical changes to the text ranging from the insertion of clarifying punctuation to a thorough modernization of archaic writing style. When sections contain structural or substantive changes, such as the deletion or addition of language, the drafting note describes the reason for the proposed change.
Many of the technical changes arose from the Code Commission's determination that terminology should be clear, consistent, and modern. The following list provides a representative sample of the most significant and most widely implemented technical changes made in the proposed title.
The following technical changes are made in order to maintain consistency with changes made in previous title revisions, to update antiquated language, to provide clarity, and to bring Title 55.1 into accordance with Title 1 rules of construction for the Code:
• § 1-218. Includes. "Includes" means includes, but not limited to.
• § 1-221. Locality. "Locality" means a county, city, or town as the context may require.
• § 1-227. Number. A word used in the singular includes the plural, and a word used in the plural includes the singular.
• § 1-244. Short title citations. Short titles have been eliminated as unnecessary in light of the title-wide application of § 1-244, which states that the caption of a subtitle, chapter, or article operates as a short-title citation.
• § 1-216. Gender. A word used in the masculine includes the feminine and neuter.
• In accordance with title-wide conventions, gender-specific terms are replaced with gender-neutral ones.
• References to "court of competent jurisdiction" after "court" have been deleted as unnecessary.
• Purpose statements have been stricken in accordance with the Code Commission's policy that purpose statements do not have general and permanent application and thus are not to be included in the Code.
• Subsection catchlines have been stricken pursuant to the Code Commission's policy that such catchlines are unnecessary.
• Outdated language used in the old equitable pleading practice, including use of the words "bill," "decree," and "suit," is replaced with modern terminology.
• The requirement that a newspaper be in "an English language" is deleted as unnecessary and for consistency throughout the Code.
• "And/or": This grammatical shortcut, which often leads to confusion or ambiguity, is amended throughout to reflect the appropriate meaning: "and" in the sense of all, inclusive; "or" in the sense of "either/any or both/all."
• When grammatically feasible, "will" or "must" is changed to "shall" or other appropriate term.
• "Virginia" is replaced with "the Commonwealth."
• "This Commonwealth" is replaced with "the Commonwealth."
• The phrase "goods or chattels" is modernized with the phrase "personal property."
• "Shall have the authority to" and similar variants of this term are changed to "may."
• To the extent feasible, unclear references to "herein," "therefor," "thereof," and "thereon" are replaced with more specific references.
• Phrases such as "heretofore or hereafter" are removed because they mean "before now or after now."
• Definitions are moved to the beginning of the section, article, chapter, etc., to provide the reader better clarity and context.
• When grammatically feasible, "shall be guilty" is changed to "is guilty."
• "Admit to record" is changed to "record," and "admitted to record" is changed to "recorded."
• The phrase "tenants by the entireties" is changed to "tenants by the entirety" for consistency throughout the title.
• In the context of an administrative agency promulgating regulations, the word "rules" is stricken prior to the word "regulations" because an administrative agency promulgates regulations, not rules.
Substantive Changes Proposed in Title 55.1
When the Code Commission has approved a substantive change to a provision of existing law, it is noted in the drafting note for the affected section. In addition to the substantive changes listed below, as previously noted, during the revision process, the Code Commission became aware of several existing sections and an existing chapter that are unnecessary or obsolete and are recommended for repeal. While not included below, such recommendations are substantive in nature. Further substantive changes not yet addressed in the summary include:
• The title of existing Chapter 3 (Property Rights of Married Women) is changed to Property Rights of Married Persons in proposed Chapter 2 to reflect the title-wide convention that gender-neutral terms are preferable to gender-specific ones. The language throughout the chapter is also updated to apply the chapter contents to all spouses, as opposed to just married women. These amendments resolve the current law's potentially unconstitutional sex-based classification, which applies to wives but not husbands. See Schilling v. Bedford Co. Mem'l Hospital, 225 Va. 539, 303 S.E.2d 905 (1983) (holding that the doctrine of necessaries, which made a husband responsible for the necessary goods and services furnished to his wife, was unconstitutional).
• As previously noted, existing Chapter 29 (§ 55-528 et seq.) (Common Interest Community Management Information Fund) is relocated as proposed Article 2 (§ 54.1-2354.1 et seq.) of Chapter 23.3 (Common Interest Communities) of Title 54.1 (Professions and Occupations). Existing sections of Chapter 23.3 of Title 54.1 are designated as part of proposed Article 1. A substantive change is recommended to add a new section (proposed § 54.1-2345.1) to Article 1, which uses language from the Uniform Common Interest Ownership Act and excludes the following from being deemed common interest communities: (i) contractual arrangements for cost sharing between two or more common interest communities or contractual arrangements between an association and the owner of real estate outside of the common interest community's boundary and (ii) certain covenants of separately owned or leased parcels of real estate.
• Existing § 55-169 provides that an escheator is to provide a $3,000 bond for the judicial circuit in which he is appointed in the circuit court of the locality in which he resides. In proposed § 55.1-2402, a substantive change is made to specify that the escheator's bond is not required to be secured. This change is consistent with the requirements for a fiduciary's bond pursuant to § 64.2-1411.
• Existing § 55-170 relates to the increase or reduction of penalty of an escheator's bond. The section provides that an escheator who is required to give a bond with an increased penalty and who fails to do so within a reasonable time period has neglected an official duty within the meaning of § 55-169. This provision is proposed for repeal as obsolete; according to existing § 55-168, escheators serve at the pleasure of the Governor and may be removed with or without cause, including neglect of an official duty. Existing § 55-169 was amended in 1982 to remove language relating to neglect of official duty, but existing § 55-170 was not amended at that time to reflect those changes.
• Existing § 55-175 has conflicting requirements as to how many jurors are required to concur in a verdict in an escheat proceeding: One portion of the section states that at least seven impaneled jurors must concur in the verdict, whereas another sentence states that a verdict must be signed by a majority of the jurors. The sentence stating that a verdict is effective if signed by a majority is proposed for repeal.
• Existing § 55-310 contains provisions regarding how the governing body of a county may make a local fence law. Proposed § 55.1-2814 contains a substantive change by providing that a county must act by ordinance to make a local fence law, cross-referencing the notification requirements contained in subsection F of § 15.2-1427 for adopting an ordinance. Existing § 55-310 contains language that is unclear as to the process needed for the declaration of a lawful fence since, pursuant to § 15.2-1425, counties may only act by ordinances, resolutions, and motions.
• Existing § 55-324 outlines the petition process for an action to fix the boundaries of a village or unincorporated community, including the requirement of posting a notice at the front door of a county courthouse and at three or more conspicuous places within the boundaries of the village or unincorporated community. A substantive change is recommended in proposed § 55.1-2828 by adding the requirement to publish the notice in a newspaper of general circulation for consistency throughout the chapter.