The Silver Creek Association, Inc. v. Matthew Irby, in this official capacity as State Tax Commissioner of the State of West Virginia, and Johnny Pritt, in his official capacity as Assessor of Pocahontas County, West Virginia

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

Fall 2024 Term November 14, 2024

____________________________ released at 3:00 p.m.

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

No. 23-ICA-372 OF WEST VIRGINIA

____________________________

THE SILVER CREEK ASSOCIATION, INC, ET AL.,

Petitioners Below, Petitioners

v.

MATTHEW IRBY, in his official capacity as State Tax Commissioner of the

State of West Virginia, AND JOHNNY PRITT, in his official capacity as

Assessor of Pocahontas County, West Virginia,

Respondents Below, Respondents.

___________________________________________________________

Appeal from the Circuit Court of Pocahontas County

The Honorable Robert E. Richardson, Judge

Civil Action No. CC-38-2020-P-31

REVERSED

___________________________________________________________

Submitted: September 17, 2024

Filed: November 14, 2024

Mark A. Sadd, Esq. Patrick Morrisey, Esq.

Lewis Gianola, PLLC Cassandra L. Means-Moore, Esq.

Charleston, West Virginia Seth E. Harper, Esq.

Counsel for Petitioners Office of the Attorney General

Charleston, West Virginia

Counsel for Respondent Matthew Irby

Robert P. Martin, Esq.

Marlinton, West Virginia

Counsel for Respondent Johnny Pritt

JUDGE CHARLES O. LORENSEN delivered the Opinion of the Court.

LORENSEN, JUDGE:

Petitioners Russell D. and Cinnamon M. Jessee, Jeffrey S. and Drenna

Banks, Malcolm J. and Colleen K. Cooper, Duval Lee and Dorthea A. Fuqua, Raymond

Bruce James and Harriet Hawks, Louis J. Constanzo, David and Linda Christopher,

William C. White, II, William R. and Mary L. Terrini, Michael D. and Jennifer L. Cajohn,

and Kevin R. Banning (individually, a “Petitioner Owner” and collectively “Petitioner

Owners”) and Petitioner The Silver Creek Association, Inc. (the “Association”) appeal a

July 24, 2023, order of the Circuit Court of Pocahontas County granting summary judgment

to Respondents, Matthew Irby, West Virginia State Tax Commissioner, and Johnny Pritt,

Pocahontas County Assessor. The circuit court upheld the Tax Commissioner’s ruling that

Petitioner Owners’ condominium units did not qualify as Class II properties1 but instead

were properly classified as Class III for ad valorem property tax purposes for property tax

year 2021.

After careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we disagree with the circuit court’s affirmation

1

Reflecting the property classification system established by Article X, Section 1

of the West Virginia Constitution, the Legislature provides the scheme under which taxable

property is classified in Classes I–IV. See W. Va. Code § 11-8-5 (1961). Classes II and III

are at issue in this case. Class II properties are owned, used, and occupied by the owner

exclusively for residential purposes, and Class III properties are all properties outside a

municipality, other than Class I or Class II property. Class III property is subject to a higher

tax rate than Class II property.

1

of the Tax Commissioner’s Property Tax Ruling 21-16 which found that the West Virginia

Uniform Common Interest Act (“Uniform Act”) prohibits “split ticket” classifications and

assessments of Petitioner Owners’ condominium units where, as here, Petitioner Owners

use their units exclusively as owner-occupied residences, but a part of the common

elements of the condominium are used for commercial purposes. Accordingly, we reverse

the circuit court’s July 24, 2023, order and find that property comprising each Petitioner

Owner’s units is entitled to Class II property classification for property tax year 2021.

I. FACTUAL AND PROCEDURAL HISTORY

The Lodge at Silver Creek (“Lodge”) on Snowshoe Mountain in Pocahontas

County, West Virginia, is a condominium building containing 239 residential units, eight

commercial units, and common elements.2 The Lodge is a common interest community

subject to the Uniform Act, and the Association is the common interest community’s unit

owners’ association under the Uniform Act. Approximately ten percent of the Lodge’s

residential units are used by their owners exclusively for their own residential purposes and

not held out for rental to third-party guests. Petitioner Owners are among this group of unit

owners who do not hold their condominium units out for rent to third-party guests.

2

“‘Common elements’ means… all portions of the common interest community

other than the units….” W. Va. Code § 36B-1-103(4) (1998).

2

For property tax purposes, the units in the Lodge that are held for rental to

third-party guests have been and continue to be considered Class III properties because

their owners are not individuals who own, use, and occupy their units exclusively for their

own residential purposes. However, prior to the events discussed below, the Petitioner

Owners’ units were classified as Class II properties as they were not rented and were

owned, used, and occupied exclusively for Petitioner Owners’ own residential purposes.

This case concerns the classification, assessment, and taxation of the Petitioner Owners’

units because a portion of the Lodge, which recently became a part of the Lodge’s common

elements, was used to operate a commercial bar and grill called “The Locker Room” open

to the public, generally.

The Association litigated with Snowshoe Mountain Inc. (“Snowshoe”)

concerning the ownership of a commercial area in the Lodge now used as The Locker

Room (the “Commercial Space”). Snowshoe claimed that the Commercial Space was not

a part of the common interest community but was rather owned separately by Snowshoe

outside the scope of the common interest community. Snowshoe and the Association

reached a settlement in 2016 pursuant to which Snowshoe transferred the Commercial

Space to the Association and the Commercial Space was expressly included as common

interest community property owned by the Association in a restated declaration. Prior to

the settlement, the Commercial Space was, for ad valorem tax purposes, separately

classified, assessed, and billed to Snowshoe.

3

After the settlement, the Pocahontas County Assessor classified, assessed,

and billed the Association separately for the Commercial Space. However, on February 14,

2018, the Association and the Pocahontas County Assessor jointly requested a property tax

ruling from the Tax Commissioner pursuant to West Virginia Code § 11-3-24a (2010)

concerning whether the Commercial Space should be classified, assessed, and billed to the

Association or to the unit owners. The Tax Commissioner issued Property Tax Ruling 18-

49 on February 26, 2018, finding that the Association was a successor declarant of the

condominium and that the Association should be taxed separately for the Commercial

Space, which the Tax Commissioner considered a condominium unit. The Association

appealed Property Tax Ruling 18-49 to circuit court.

On January 4, 2019, the Circuit Court of Pocahontas County reversed

Property Tax Ruling 18-49 and found that the Association was not a successor declarant

under the Uniform Act, and that the Commercial Space was not a unit but instead the

Commercial Space constituted a common element of the common interest community that,

pursuant to West Virginia Code § 36B-1-105(b)(2) (1986), could not be classified,

assessed, and billed separately to the Association.

Based upon the 2019 circuit court order, the Pocahontas County Assessor

began assessing ad valorem taxes using the Class III rate for the Petitioner Owners on their

condominium units based on the Petitioner Owners’ fractional interest in the Commercial

4

Space as part of the common elements of the Lodge. The change significantly increased

Petitioner Owners’ tax liability and Petitioner Owners objected. The Assessor again sought

a ruling under West Virginia Code § 11-3-24a, and the Tax Commissioner issued Property

Tax Ruling 21-16 finding that the Petitioner Owners’ units were properly classified as

Class III property based not on their use of the units but upon their fractional interest in the

Commercial Space. The Tax Commissioner determined that the Uniform Act prohibited

split tickets that would enable separate classification for the condominium units, on one

hand, and the Commercial Space, on the other.

Petitioner Owners and the Association appealed the ruling to circuit court,

which affirmed the ruling and analysis of the Tax Commissioner in Property Tax Ruling

21-16 and otherwise dismissed Petitioner Owners’ challenges to tax year 2019 and 2020

classifications. The Petitioner Owners and the Association now appeal the circuit court

order’s ruling regarding the 2021 tax year3 to this Court.

II. STANDARD OF REVIEW

“In reviewing challenges to the findings and conclusions of the circuit court,

we apply a two-prong deferential standard of review. We review the final order and the

3

On appeal, Petitioners do not contest the circuit court’s dismissal of claims

concerning tax years 2019 and 2020 based on the circuit court’s finding that it lacked

subject matter jurisdiction over those tax years.

5

ultimate disposition under an abuse of discretion standard, and we review the circuit court's

underlying factual findings under a clearly erroneous standard. Questions of law are subject

to a de novo review.” Appalachian Emergency Medical Services, Inc. v. State Tax Com’r,

218 W. Va. 550, 553, 625 S.E.2d 312, 315 (2005) (quoting Syl. Pt. 2, Walker v. West

Virginia Ethics Com'n, 201 W. Va. 108, 492 S.E.2d 167 (1997)). With this standard in

mind, we now consider the issue before us.

III. DISCUSSION

Petitioners assign three errors to the circuit court’s July 24, 2023, order. The

first assignment of error is that, by prohibiting Petitioner Owners from taking advantage of

split ticket assessments, the order violates Section 1, Article X of the West Virginia

Constitution, which requires equal and uniform property taxation. The second assignment

of error is that the circuit court erroneously found that the Uniform Act prohibits split ticket

use classifications. The third assignment of error is that the circuit court’s order failed to

treat condominium real estate ownership the same as other fee forms of ownership in

violation of West Virginia Code §§ 36B-1-105(b)(1) and 36B-1-106(b) (1986), and other

provisions of West Virginia law. We find merit in Petitioners’ second and third

assignments of error and reverse the circuit court’s order on statutory construction grounds.

6

Accordingly, we find it unnecessary to address Petitioners’ constitutional challenge to the

circuit court’s order.4

The West Virginia Legislature enacted the Uniform Act in 1982 “to make

uniform the law with respect to [common interest communities] among states enacting it.”

W.Va. Code § 36B-1-110 (1986). The Uniform Act “governs the formation, management,

and termination of a common interest community, whether that community is a

condominium, planned community, or real estate cooperative.” Foster v. Orchard Dev. Co.

LLC, 227 W. Va. 119, 121 n.2, 705 S.E.2d 816, 818 n.2 (2010) (citation omitted). The

Uniform Act is a product of the National Conference of Commissioners on Uniform State

Laws (Uniform Law Commission)5 to “do all in their power to promote uniformity in state

laws, upon all subjects where uniformity may be deemed desirable and practicable.” W.Va.

Code § 29-1A-4 (1931).

The circuit court, affirming the Tax Commissioner’s Property Tax Ruling

21-16, found that West Virginia Code § 36B-1-105(b) prohibits a split ticket property

4

“When it is not necessary in the decision of a case to determine a constitutional

question, this Court will not consider or determine such question.” Syl. Pt. 5, In re Tax

Assessments against Pocahontas Land Corp., 158 W. Va. 229, 210 S.E.2d 641 (1974). See

also Davis v. Mound View Health Care, Inc., 220 W. Va. 28, 29 n.2, 640 S.E.2d 91, 92 n.2

(2006).

West Virginia is a participant in the National Conference of Commissioners on

5

Uniform State Laws. See W. Va. Code § 29-1A-1, et seq.

7

assessment for condominium units governed by the Uniform Act. Petitioners argue that the

Uniform Act does not prohibit the application of general provisions of tax law enacted by

the Legislature pursuant to Section 1, Article X of the West Virginia Constitution to

classify property to reflect multiple uses of that property to give effect to West Virginia’s

constitutionally established classification system for ad valorem tax purposes. We agree.

Pursuant to Article X, Section 1 of the West Virginia Constitution, the

Legislature enacted West Virginia Code § 11-8-5, which among other things provides that

for real property to be considered Class II, it must be used exclusively by the owner for

residential purposes. The Legislature also enacted general laws to enable a single parcel of

real property to be divided solely for tax purposes based on different uses of a portion of

the property to properly reflect the Constitution’s classification system. See W. Va. Code

§§ 11-4-2(1) and 11-4-18. West Virginia Code § 11-4-2(1) requires assessors to determine,

in square feet, the area of a parcel used for residential purposes. West Virginia Code § 11-

4-2(1) states that:

The Tax Commissioner shall prescribe a form of landbook and

the information and itemization to be entered therein, which

shall include separate entries of: (1) All real property or

whatever portion thereof in square feet that is owned, used,

and occupied by the owner exclusively for residential

purposes, including mobile homes, permanently affixed to the

land and owned by the owner of the land….

8

(emphasis added). Additionally, West Virginia Code § 11-4-18 provides authority for a

parcel to be divided based on use for purposes of entry upon county land books to reflect

the proper classification of the parcel:

[T]he county court may, upon the application of the owner,

divide, consolidate, or both, as the case may be, any tracts or

lots for the purpose of entry upon the land books of the county.

This shall apply solely to the segregation of real property

according to the classification contemplated by the “Tax

Limitation Amendment.” No such division shall be made

unless there is in actual fact a distinction in use, and unless the

division requested is one which the owner would make for the

separate conveyance of portions of the tract or lot, but in no

case shall any single structure be divided and only contiguous

tracts or lots shall be consolidated.

(emphasis added).

The circuit court properly recognized that different uses of a single parcel of

real property may result in that parcel being “split” for ad valorem tax classification

purposes based upon these statutes. However, the circuit court determined that West

Virginia Code § 36B-1-105(b), a part of the Uniform Act, operates to prohibit the operation

of West Virginia Code §§ 11-4-2(1) and 11-4-18 for property held in common interest

communities like the Lodge.

West Virginia Code § 36B-1-105(b)(1) and (2) provide how common

elements in common interest communities are treated and taxed:

(b) In a condominium or planned community:

9

(1) If there is any unit owner other than a declarant, each unit

that has been created, together with its interest in the common

elements, constitutes for all purposes a separate parcel of real

estate.

(2) If there is any unit owner other than a declarant, each unit

must be separately taxed and assessed, and no separate tax or

assessment may be rendered against any common elements for

which a declarant has reserved no development rights.

(emphasis added). Accordingly, pursuant to subsection (b)(1), a unit owner’s interest in a

condominium unit and the owner’s fractional interest in common elements are to be treated

as a separate parcel of real estate. The issue in this case concerns the effect of West Virginia

Code § 36B-1-105(b)(2). According to the circuit court, West Virginia Code § 36B-1-

105(b) is plain and unambiguous, and subsection (b)(2) overrides the general provisions in

West Virginia Code §§ 11-4-2(1) and 11-4-18, providing that each parcel be afforded a

split ticket to reflect multiple uses when the parcel is within a common interest community.

Petitioner Owners argue that subsection (b)(2) does not reference tax classification at all

and need not be read to override or nullify the statutes allowing for split tickets. We agree

with Petitioner Owners and hold that West Virginia Code § 36B-1-105(b) does not operate

to deprive Petitioner Owners of a right to seek differing classifications of their units and

their fractional interest in common elements as generally provided in West Virginia Code

§§ 11-4-2(1) and 11-4-18.

10

“The primary rule of statutory construction is to ascertain and give effect to

the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885

(1953). The Supreme Court of Appeals of West Virginia (“SCAWV”) has long held that

“[a] statutory provision which is clear and unambiguous and plainly expresses the

legislative intent will not be interpreted by the courts but will be given full force and

effect.” Syl. Pt. 3, In re I.S.A., 244 W. Va. 162, 852 S.E.2d 229 (2020) (quoting Syl. Pt. 2,

State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951)).

We agree with the circuit court that West Virginia Code § 36B-1-105(b) is

unambiguous but disagree about its application. The plain language of West Virginia Code

§ 36B-1-105(b)(2) does not prohibit—or even address—split ticket classification. Rather,

subsection (b)(2)’s language “no separate tax or assessment may be rendered against any

common elements for which a declarant has reserved no development rights” simply

prohibits common elements from being taxed as a separate parcel. Under the split ticket

classification Petitioners seek, the Commercial Space would not be taxed or assessed as a

separate parcel, because each Petitioner Owner would be taxed for his or her fractional

interest in the Commercial Space as part of the tax assessment on his or her unit. Each

Petitioner Owner would simply receive the benefit of split ticket classification, under which

the owner’s residential unit would be classified as Class II property, and his or her

fractional interest in the Commercial Space would be classified as Class III property. We

11

find that such split ticket classification is fully consistent with the plain language of West

Virginia Code § 36B-1-105(b).

Moreover, even if we found that West Virginia Code § 36B-1-105(b) is also

susceptible of a construction prohibiting split ticket classifications, and, therefore, is

ambiguous, we would resort to the rules of statutory construction. See Sizemore v. State

Farm Gen. Ins. Co., 202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998) (quoting Hereford

v. Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949)) (“A statute is open to

construction only where the language used requires interpretation because of ambiguity

which renders it susceptible of two or more constructions or of such doubtful or obscure

meaning that reasonable minds might be uncertain or disagree as to its meaning.”). “A

statute that is ambiguous must be construed before it can be applied.” Syl. Pt. 1, Farley v.

Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). The rules of statutory construction

would compel the Court to adopt the construction of West Virginia Code § 36B-1-105(b)

that does not prohibit split ticket classifications.

Under the rule of in pari materia, “[s]tatutes which relate to the same subject

matter should be read and applied together so that the Legislature’s intention can be

gathered from the whole of the enactments.” Syl. Pt. 3, Smith v. State Workmen’s Comp.

Com’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Similarly, “[w]here it is possible to do so,

it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws,

12

and to adopt that construction of a statutory provision which harmonizes and reconciles it

with other statutory provisions.” Charleston Gazette v. Smithers, 232 W. Va. 449, 468, 752

S.E.2d 603, 622 (2013) (quoting State v. Williams, 196 W.Va. 639, 641, 474 S.E.2d 569,

571 (1996)).

Accordingly, even if West Virginia Code § 36B-1-105(b) were susceptible

of both the interpretation adopted by the circuit court that bars split ticket classification and

the reading set forth above that does not address or prohibit split ticket classification, we

would adopt the latter construction as the one that harmonizes—rather than conflicts—with

West Virginia Code §§ 11-4-2(1) and 11-4-18. This interpretation of West Virginia Code

§ 36B-1-105(b) permitting split ticket classification is also supported by various persuasive

authorities, including a comment from the drafters of the Uniform Act, caselaw from

another jurisdiction, and another provision of the Uniform Act.

13

First, we find comments by the drafters of the Uniform Act helpful in our

review.6 The Uniform Law Commission adopted comment five to Section 1-105(b) of the

Uniform Act as follows:7

When separate tax assessments become mandatory under this

section, the assessment for each unit must be based on the value

of that individual unit, under whatever uniform assessment

mechanism prevails in the State or locality. Importantly, no

separate tax bill on the common elements is to be rendered to

the association or the unit owners collectively, even though, in

the context of planned communities, the common elements

owned by the association might be subject to taxation as a

separately owned parcel of real estate, in the absence of this

provision.

6

See Quicken Loans, Inc v. Brown, 230 W. Va. 306, 322-323, 737 S.E.2d 640, 656-

657 (2012) (noting “the drafters’ comments to the Consumer Credit Code to be highly

instructive” in interpreting the West Virginia Consumer Credit and Protection Act);

Northeast Natural Energy LLC v. Pachira Energy LLC, 243 W. Va. 362, 367, 844 S.E.2d

133, 138 (2020) (relying on drafter comments to the Uniform Partnership Act); Orlando v.

Finance One of West Virginia, Inc., 179 W. Va. 447, 451 n.6, 369 S.E.2d 882, 886 n.6

(1988) (relying on drafter comments to the Uniform Consumer Credit Code); see also

Yacht Club II Homeowners Association, Inc. v. A.C. Excavating, 94 P.3d 1177, 1179-1180

(Colo. App. 2003) (“We presume that, enacting a statute, the legislature was aware of

decisional law…and we accept the intent of the drafters of a uniform act as the General

Assembly’s intent when it adopts a uniform act.” (citations omitted)); Hunt Club

Condominiums, Inc. v. Mac-Gray Services Inc., 721 N.W. 2d 117, 123 (Wis. Ct. App.

2006). (“When a…statute has a counterpart among the uniform acts promulgated under the

auspices of the National Conference of Commissioners on Uniform State Laws, we may

consider the official and published comments of the drafters of the uniform law.” (citation

omitted)).

7

Section 105(b) of the Uniform Act discussed in the drafters’ comments is identical

to West Virginia Code § 36B-1-105(b).

14

(emphasis added). Uniform Law Commission’s Common Interest Ownership Act § 105(b)

cmt. 5 (“Comment 5”). This comment clarifies that § 105(b) is intended to prohibit separate

tax assessments on common elements for unit owners collectively or the unit owners’

association. There is no indication in drafters’ comments evincing an intent that § 105(b)

prohibit separate classifications of an undivided interest in common elements based on the

use of the common elements.

Second, a Colorado case provides guidance on the property tax classification

of residential condominium units where part of the common elements is used for

commercial purposes. See Manor Vail Condominium Ass’n v. Board of Equalization of

County of Eagle, 956 P.2d 654 (Colo. App. 1998). Colorado imposes a higher tax rate on

commercial property than residential property. Manor, 956 P.2d at 656. Colorado’s

version of the Uniform Act8 contains similar provisions to West Virginia Code § 36B-1-

105(b) (unit and common element ownership interests are treated as one parcel and

common elements shall not be separately taxed or assessed). The Colorado law requires

8

The statute at issue in Manor states that:

In a condominium or planned community with common elements, each unit

that has been created, together with its interest in the common elements,

constitutes for all purposes a separate parcel of real estate and must be

separately assessed and taxed. The valuation of the common elements shall

be assessed proportionately to each unit, in the case of a condominium in

accordance with such unit's allocated interests in the common elements…,

and the common elements shall not be separately taxed or assessed….

Colo. Rev. Stat. Ann. § 38-33.3-105(2) (1993) (emphasis added).

15

county assessors to allocate the proportion of uses on a parcel (commercial versus

residential), a process that is generally required for all parcels by West Virginia Code § 11-

4-2(1).

In Manor, the assessor determined the proportion of value of the residential

unit and commercial ownership interests and, despite the language in Colorado’s version

of § 105(b) (requiring that common elements not be separately taxed or assessed), the

assessor calculated tax on each unit owner proportionately at a commercial rate for the

common elements and at a residential rate for the residential units. The unit owners in

Manor objected, arguing that the § 105(b) language prohibiting separate assessments for

common elements required the assessor to classify their entire condominium ownership

interests (including their proportional interest in commercial common elements) as

residential. The Colorado Court of Appeals, relying on Comment 5, disagreed and stated

that:

Taxpayer's assertion that the Administrator's procedures set

forth . . . violate § 38-33.3-105(2) is premised on the phrase in

that statute stating that ‘common elements shall not be

separately taxed or assessed.’ But, viewed in context, that

phrase is merely a recognition that the value of common

elements is inherently included as a component of each

individual unit's total actual value and will be assessed and

taxed as part of an individual unit's overall assessment and

taxation, rather than separately taxed or assessed to the

association as was previously done here…The practical effect

of this aspect of the statute is that county assessors are not to

schedule common element properties separately in their

16

records nor issue separate notices of valuation or tax bills for

them.

Manor, 956 P.2d at 660. Manor’s interpretation of § 105(b) is reasonable, and it is

consistent with Comment 5.

Third, the Uniform Act generally requires that common interest communities

are to be treated similarly to other forms of real property ownership. For instance, West

Virginia Code § 36B-1-106 provides that:

(a) A building code may not impose any requirement upon any

structure in a common interest community which it would not

impose upon a physically identical development under a

different form of ownership.

(b) In condominiums and cooperatives, no zoning,

subdivision, or other real estate use law, ordinance, or

regulation may prohibit the condominium or cooperative form

of ownership or impose any requirement upon a condominium

or cooperative which it would not impose upon a physically

identical development under a different form of ownership.

While West Virginia Code § 36B-1-106 does not directly relate to property tax on common

interest community property, the statute illustrates the Uniform Act’s general intent that

state and local governments are to endeavor to treat common interest community property

similarly to other forms of real property ownership.

17

Finally, the circuit court determined that the split ticket authority provided in

West Virginia Code § 11-4-18 is unavailable to Petitioner Owners because the ownership

interest must be “one which the owner would make for the separate conveyance.”

According to the circuit court, the Petitioner Owners are unable to convey their ownership

interests in the Commercial Space because doing so would be like selling walls or wiring.

However, Petitioner Owners assert, and the Tax Commissioner does not deny, that the

declaration governing the Lodge allows for the conveyance of common elements in certain

circumstances. Additionally, Petitioner Owners note that West Virginia Code § 11-4-18

does not specify that an ownership interest be immediately capable of transfer, only that an

owner could make a separate conveyance. Indeed, background of this case demonstrates

that the Commercial Space was in fact conveyed separately from the condominium units

in the recent past. We find no reason why that same property could not be conveyed in the

future if the requisite conditions in the declaration are satisfied.

IV. CONCLUSION

In summary, West Virginia Code § 36B-1-105(b) is unambiguous and does

not prohibit split ticket classifications. Moreover, even if we found West Virginia Code §

36B-1-105(b) to be ambiguous, it may be read in harmony with the classification

provisions of the property tax law (including West Virginia Code §§ 11-4-2 and 11-4-18)

considering the purpose of the Uniform Act. Under the rules of statutory construction, that

is the construction we would adopt. Therefore, as urged by Petitioner Owners, we find that

18

West Virginia Code § 36B-1-105(b)(2) does not prohibit the Tax Commissioner from

creating split ticket classifications.

We conclude that the circuit court committed error of law when it affirmed

the Property Tax Ruling 21-16 that West Virginia Code § 36B-1-105(b) prohibits owners

of common interest community units from availing themselves of the property tax

classification provisions of West Virginia Code § 11-4-2 and West Virginia Code § 11-4-

18. The circuit court’s order dated July 24, 2023, is therefore reversed.

Reversed.

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