IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2013 Term FILED 

_______________ February 6, 2013 

No. 11-1398 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS _______________ OF WEST VIRGINIA 

POPE PROPERTIES / CHARLESTON
 

LIMITED LIABILITY COMPANY,
 

Petitioner
 

v. 

THE HONORABLE SALLIE ROBINSON,
 

IN HER CAPACITY AS KANAWHA COUNTY ASSESSOR,
 

Respondent
 

Appeal from the Circuit Court of Kanawha County
 

The Honorable Louis H. Bloom, Judge
 

Civil Action No. 11-AA-42
 

AFFIRMED
 

Submitted January 15, 2013
 

Filed: February 6, 2013
 

Mark A. Sadd, Esq. Karen Tracy McElhinny, Esq. 

James C. Stebbins, Esq. Shuman, McCuskey & Slicer, PLLC 

Lewis Glasser Casey & Rollins, PLLC Charleston, West Virginia 

Charleston, West Virginia Stephen C. Sluss, Esq. 

Counsel for the Petitioner Kanawha County Assessor’s Office 

Charleston, West Virginia 

Counsel for the Respondent 

JUSTICE KETCHUM delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “‘An assessment made by a board of review and equalization and approved by the 

circuit court will not be reversed when supported by substantial evidence unless plainly wrong.’ Syl. 

pt. 1, West Penn Power Co. v. Board of Review and Equalization, 112 W.Va. 442, 164 S.E. 862 

(1932).” Syl. pt. 3, Western Pocahontas Properties v. County Commission of Wetzel County, 189 

W.Va. 322, 431 S.E.2d 661 (1993). 

2. “A taxpayer challenging an assessor’s tax assessment must prove by clear and 

convincing evidence that such tax assessment is erroneous.” Syl. pt. 5, in part, In re: Tax Assessment 

of Foster Foundation’s Woodlands Retirement Community, 223 W.Va. 14, 672 S.E.2d 150 (2008). 

3. In cases where a taxpayer challenges an ad valorem tax assessment, a circuit 

court’s conclusions of law are reviewed by this Court de novo. 

4. Non-owner-occupied Class III condominium units, owned by a corporation and 

operated as income-producing property through the renting of the units as residential apartments, 

constitute commercial property with respect to the valuation and assessment of ad valorem taxes. 

5. “Title 110, series 1P of the West Virginia Code of State Rules confers upon the 

State Tax Commissioner discretion in choosing and applying the most accurate method of appraising 

commercial and industrial properties. The exercise of such discretion will not be disturbed upon 
 

 

 

 

 

 

 

judicial review absent a showing of abuse of discretion.” Syl. pt. 5, In re: Tax Assessment Against 

American Bituminous Power Partners, 208 W.Va. 250, 539 S.E.2d 757 (2000). 

6. “When a circuit court reviews an appraisal of commercial real property made for 

ad valorem taxation purposes, the court shall, in its final order, make findings of fact and 

conclusions of law addressing the assessing officer’s consideration of the required appraisal factors 

set forth in W.Va. C.S.R. §§ 110-1P-2.1.1. to 2.1.4. (1991).” Syl. pt. 7, Stone Brooke Limited 

Partnership v. Sisinni, 224 W.Va. 691, 688 S.E.2d 300 (2009). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ketchum, Justice: 

This case is before this Court upon the appeal of Pope Properties / Charleston Limited 

Liability Company (“Pope Properties”), from the September 20, 2011, order of the Circuit Court of 

Kanawha Countywhich affirmed the decision of the CountyCommission of Kanawha Countysitting 

as the Board of Equalization and Review. At issue is the valuation and corresponding tax 

assessment of Pope Properties’ 79 condominium units located in a complex known as Country Club 

Village Apartments. The Board of Equalization and Review upheld the determination of the 

Assessor that for ad valorem tax purposes for 2011, the 79 units should be valued as follows: 

$63,700 for each of Pope Properties’ 16 one-bedroom units and $70,000 for each of its 63 twobedroom units. Pope Properties contends that the valuations of the Assessor are incorrect and that, 

instead, the 79 units should be valued at $42,000 for each of the 16 one-bedroom units and $49,000 

for each of the 63 two-bedroom units. 

The underlying disagreement between Pope Properties and the Assessor concerns the 

Assessor’s use of the market data (comparable sales) approach in determining the value of the units, 

rather than the income approach to valuation advocated by Pope Properties. 

Upon careful review of the record-appendix, the briefs and argument of the parties, and 

relevant authorities, this Court is of the opinion that Pope Properties has failed to establish that the 

Assessor was erroneous by clear and convincing evidence. As discussed herein, although the 

Assessor was mistaken in concluding that the 79 units, considered individually, were non1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

commercial in nature, that conclusion did not affect the validity of the Assessor’s choice, or manner 

of application, of the market data approach in this case. Accordingly, the September 20, 2011, order 

of the circuit court is affirmed. 

I.
 

Factual and Procedural Background
 

The complex known as Country Club Village Apartments, initially constructed in 1979, 

includes 102 condominiums, 79 of which were purchased by Pope Properties in the early 1990s. 

Since the purchase, Pope Properties has operated its condominiums, consisting of 16 one-bedroom 

units and 63 two-bedroom units, as income-producing rental property. The 79 units have never been 

owner-occupied or held out for sale. Throughout the years, the Assessor has valued the 79 units 

individually as Class III property. The rest of the condominiums in the complex, not belonging to 

Pope Properties, are owner-occupied.1 

For tax year 2011, the Assessor, using the market data (comparable sales) approach, valued 

Pope Properties’ 79 condominiums at $63,700 for each of its 16 one-bedroom units and $70,000 for 

each of its 63 two-bedroom units. Specifically, the Assessor looked at three recent sales of two 

owner-occupied condominium units within the same complex, Country Club Village Apartments. 

The sales, involving one and two-bedroom units, occurred between 2008 and 2010 and sold for 

$64,000, $70,000 and $78,000. 

1 For levy purposes, the 79 condominium units have been classified as Class III property, 

thus subjecting the units to higher tax assessments than in the case of Class II owner-occupied 

residential property. 

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Asserting that the valuations for tax year 2011 were substantially higher than the valuations 

for the previous year, Pope Properties filed an application for relief before the County Commission 

of Kanawha County sitting as the Board of Equalization and Review. 

On February 22, 2011, the Board of Equalization and Review conducted an evidentiary 

hearing. Joseph Pope, a manager of Pope Properties, testified on behalf of the taxpayer that, for 

commercial lending purposes, the income approach to valuation, rather than the market approach, 

is used insofar as Pope Properties’ units are financed in the aggregate, and consolidated profit and 

loss statements are considered. Following that testimony, Pope Properties called Stephen A. 

Holmes, a certified real estate appraiser. Holmes stated that the 79 units constituted commercial 

property which, using the income approach, should be valued for tax year 2011 at $42,000 for each 

of the 16 one-bedroom units and $49,000 for each of the 63 two-bedroom units. 

Holmes testified that he considered the three traditional approaches to appraising real 

property, i.e., cost, market data (comparable sales) and income. He rejected the cost approach on 

the basis that the Country Club Village Apartments was too old for that approach to be meaningful. 

Holmes also rejected the market data approach because the three sales relied on by the Assessor were 

owner-occupied units. In that regard, Holmes stated that it was improper for the Assessor to use the 

sale of Class II property in appraising Class III commercial parcels. Thus, according to Holmes, the 

income approach was the most appropriate method of appraising the 79 units, especially since Pope 

Properties had operated the units exclusively as income-producing units throughout the years. 

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Stephen Duffield, Chief Deputy Assessor, testified, however, that Pope Properties’ 79 

condominium units did not constitute commercial property when viewed as separate units rented to 

individuals. In any event, according to Duffield, the market data approach was the appropriate 

method to value the 79 units since the three comparable sales used by the Assessor were within the 

same condominium complex. With regard to the income approach advocated by Pope Properties, 

Duffield acknowledged: 

Q. And, Mr. Duffield, one thing I want to make clear for the record, you are 

not saying that you could not use the income approach if it were appropriate in a 

condominium situation. If it were deemed to be appropriate, you could use the 

income approach. 

A. If it were deemed to be appropriate, yes, I could use it. 

Following the hearing, the Board of Equalization and Review issued a written decision 

upholding the Assessor’s valuation of the 79 condominium units for tax year 2011. The decision 

stated that Pope Properties failed to prove by clear and convincing evidence: (1) that the Assessor 

abused her discretion in using the market data approach or (2) that the valuation of the units, thus 

determined, was incorrect. 

Pope Properties appealed the decision to the Circuit Court of Kanawha County. See, W.Va. 

Code, 11-3-25 [1967] (authorizing an appeal to circuit court by a taxpayer claiming to be aggrieved 

by an erroneous assessment).2 In its petition, Pope Properties alleged that the 79 condominium units 

2 In re: Tax Assessment Against American Bituminous Power Partners, 208 W.Va. 250, 

255, 539 S.E.2d 757, 762 (2000), observes that judicial review by a circuit court of the decision 

of a board of equalization and review regarding a challenged tax assessment is limited to roughly 

the same scope permitted under the contested cases section of the State Administrative 

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are commercial parcels that should have been valued under the income approach to real estate 

appraisal. 

The circuit court entered an order on September 20, 2011, affirming the decision of the 

County Commission sitting as the Board of Equalization and Review. The order stated that the 

Assessor, upon considering all three approaches to valuation, determined that the market data 

approach was the appropriate method to value the 79 condominium units. Specifically, the order 

stated: 

The Kanawha CountyAssessor had more than ample evidence that the market 

data approach was appropriate. The Assessor had the sales prices of nearly identical 

units in the very same building in unforced sales during an arms-length transaction 

between willing buyers and sellers to use in determining the value of Pope 

Properties’ property. Therefore, the Court concludes that Pope Properties failed to 

demonstrate by clear and convincing evidence that the Kanawha County Assessor 

erroneously valued the subject 79 condominium units and that the Assessor properly 

exercised her discretion in using the market data approach to value said units.3 

Pope Properties’ appeal to this Court followed. 

Procedures Act, i.e., W.Va. Code, 29A-5-4(g) [1998]. 

3 In so ruling, the circuit court found no merit in Pope Properties’ assertion that the sales 

of the comparable units were inapplicable because they were Class II, owner-occupied property. 

The circuit court observed that the primary difference between Class II and Class III property is 

whether the property is or is not owner-occupied, which directly impacts the tax levy, rather than 

the value of the property. See, W.Va. Code, 11-8-5 [1961]. 

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II.
 

Standard of Review
 

As stated in Kline v. McCloud, 174 W.Va. 369, 371, 326 S.E.2d 715, 717 (1984), this Court 

utilizes “a two-pronged inquiry” in reviewing tax assessment cases, i.e., whether the evidence 

supports the findings below and whether there was an error of law. 

It follows, therefore, that, in the absence of allegations of constitutional or statutory 

violations, appellate review of an assessment for ad valorem tax purposes is largely fact-driven. 

Syllabus point 3 of Western Pocahontas Properties v. County Commission of Wetzel County, 189 

W.Va. 322, 431 S.E.2d 661 (1993), holds: “‘An assessment made by a board of review and 

equalization and approved by the circuit court will not be reversed when supported by substantial 

evidence unless plainly wrong.’ Syl. pt. 1, West Penn Power Co. v. Board of Review and 

Equalization, 112 W.Va. 442, 164 S.E. 862 (1932).” Further guidance in fact-driven assessment 

cases is found in syllabus point 5 of In re: Tax Assessment of Foster Foundation’s Woodlands 

Retirement Community, 223 W.Va. 14, 672 S.E.2d 150 (2008), which states, in part: “A taxpayer 

challenging an assessor’s tax assessment must prove by clear and convincing evidence that such tax 

assessment is erroneous.” In accord, syl. pt. 2, Century Aluminum of West Virginia v. Jackson 

County Commission, 229 W.Va. 215, 728 S.E.2d 99 (2012) (indicating that the burden is on the 

taxpayer to demonstrate by clear and convincing evidence that the assessment is erroneous). 

On the other hand, this Court has said, and we so hold, that in cases where a taxpayer 

challenges an ad valorem tax assessment, a circuit court’s conclusions of law are reviewed by this 

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Court de novo. Syl. pt. 1, Mountain America v. Huffman, 224 W.Va. 669, 687 S.E.2d 768 (2009), 

cert. denied, 559 U.S. _ , 130 S.Ct. 2377, 176 L.Ed.2d 785 (2010). See also, syl. pts. 1 and 2, In re: 

Tax Assessment of Foster Foundation’s Woodlands Retirement Community, supra. 

III.
 

Discussion
 

According to Pope Properties, Country Club Village Apartments was converted decades ago 

from ordinary fee simple ownership to a condominium form of ownership under the West Virginia 

Unit Property Act, W.Va. Code, 36A-1-1 [1963], et seq. The Act provides, in W.Va. Code, 36A-4-5 

[1963], that: “Units may be sold, conveyed, mortgaged, leased or otherwise dealt with in the same 

manner as like dealings are conducted with respect to real property and interests therein.”4 Pursuant 

to W.Va. Code, 36A-6-1 [1963], the property can be removed from the provisions of the Act by 

revocation. 

With regard to assessments and taxes, W.Va. Code, 36A-7-1 [1963], of the Unit Property Act 

provides: 

Each unit and its proportionate undivided interest in the common elements 

as determined by the declaration and any amendments thereof shall be assessed and 

taxed for all purposes as a separate parcel of real estate entirely independent of the 

building or property of which the unit is a part. Neither the building, the property nor 

any of the common elements shall be assessed or taxed separately after the 

declaration and declaration plan are recorded, nor shall the same be subject to 

assessment or taxation, except as the units and their proportionate undivided interests 

4 The term “unit” is defined in W.Va. Code, 36A-1-2(n) [1963], as “a part of the property 

designed or intended for any type of independent use[.]” 

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in the common elements are assessed and taxed pursuant to the provisions of this 

article. 

(emphasis added).5 

In the current matter, this Court finds merit in Pope Properties’ assertion that the Assessor 

incorrectly determined the 79 condominium units to be non-commercial. Although the units 

constituted residences rented to individuals, they were owned by the corporate taxpayer, Pope 

Properties, and consistently operated as income-producing property. There is no dispute in the 

record that, since the purchase of the units by Pope Properties in the early 1990s, the units were 

never owner-occupied or held out for sale. Although the 79 units could be sold by Pope Properties 

separately, or in groups, in the future, the status of the units during tax year 2011 as Class III nonowner-occupied property remained unchanged. 

5 The definition of “condominium” is not found in the Unit Property Act. Instead, it is 

found in the adjoining chapter, W.Va. Code, 36B-1-101 [1986], et seq., known as the West 

Virginia Uniform Common Interest Ownership Act. In W.Va. Code, 36B-1-103(8) [1998], 

thereof, “condominium” is defined as: 

a common interest community in which portions of the real estate are designated 

for separate ownership and the remainder of the real estate is designated for 

common ownership solely by the owners of those portions. A common interest 

community is not a condominium unless the undivided interest in the common 

elements are vested in the unit owners. 

The term “unit” is defined in W.Va. Code, 36B-1-103(33) [1998], as “a physical portion 

of the common interest community designated for separate ownership or occupancy[.]” 

Moreover, as in the Unit Property Act, the Uniform Common Interest Ownership Act includes 

statutes pertaining to the separate assessment and taxation of “each unit,” W.Va. Code, 36B-1­

105 [1986]; the application of “the law of real property,” W.Va. Code, 36B-1-108 [1986]; and the 

ability to terminate the common interest community, W.Va. Code, 36B-2-118(a) [1986]. 

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Moreover, the prior conversion of CountryClub Village Apartments from ordinaryfee simple 

ownership to a condominium form of ownership under the Unit Property Act is not dispositive. The 

units have never been anything to the taxpayer, Pope Properties, other than rental units in the nature 

of an apartment complex. The ownership of the 79 units as condominiums does not alter the fact 

that each unit has been a non-owner-occupied, income-producing parcel. The units are, therefore, 

commercial property. In the West Virginia Code of State Rules, “commercial property” is defined 

as meaning “income producing real property used primarily but not exclusively for the sale of goods 

or services, including but not limited to offices, warehouses, retail stores, apartment buildings, 

restaurants and motels.” W.Va. C.S.R., 110-1P-2.3.3. (1991).6 

Consequently, this Court holds that non-owner-occupied Class III condominium units, owned 

by a corporation and operated as income-producing property through the renting of the units as 

residential apartments, constitute commercial property with respect to the valuation and assessment 

of ad valorem taxes. 

However, the fact that the 79 condominium units owned by Pope Properties constituted 

commercial property in 2011 does not mandate that the units be valued under the income approach 

6 Although this Court concludes that the 79 units owned and operated by Pope Properties 

constituted commercial property for purposes of 2011 ad valorem taxation, we recognize that the 

units have both commercial and residential characteristics. As Pope Properties correctly states: 

Apartment buildings can be both “residential” and “commercial” to the 

extent that the apartments are leased to the people who reside there. [Pope 

Properties’] condominium apartments are no different in that they have always 

been income-producing, and [Pope Properties] has always leased them to other 

people as places to reside. 

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as a matter of law. The above definition of “commercial property” is found in Title 110 of the West 

Virginia Code of State Rules which sets forth legislative rules pertaining to taxation. Series 1P of 

Title 110 is entitled “Valuation of Commercial and Industrial Real and Personal Property for Ad 

Valorem Property Tax Purposes,” and W.Va. C.S.R. 110-1P-2.2.1.(1991), states that, in determining 

an estimate of fair market value, three generally accepted approaches to value will be considered and 

used, where applicable: “(A) cost, (B) income, and (C) market data.” See, The Appraisal of Real 

Estate 63 (American Institute of Real Estate Appraisers, 4th ed. 1964), discussing in detail the three 

standard approaches to valuation. Moreover, in W.Va. C.S.R. 110-1P- 2.1.1. to § 2.1.4. (1991), a 

number of additional factors are listed for consideration in the valuation of property used for 

commercial or industrial purposes.7 

The selection and application of the cost, income or market data approach, as appropriate in 

the valuation of commercial property, are within the discretion of the assessor. Stone Brooke Limited 

Partnership v. Sisinni, 224 W.Va. 691, 701, 688 S.E.2d 300, 310 (2009). In that regard, syllabus 

point 5 of In re: Tax Assessment Against American Bituminous Power Partners, supra, holds: 

Title 110, series 1P of the West Virginia Code of State Rules confers upon the 

State Tax Commissioner discretion in choosing and applying the most accurate 

7 The factors listed in W.Va. C.S.R. 110-1P-2.1.1. to 2.1.4. (1991), include: the location, 

size, characteristics and condition of the property; the previous purchase price and ease of 

alienation; any methods of ascertaining value peculiar to the property; improvements to the land 

or improvements in the form of buildings or structures; and other considerations, such as 

topography and accessibility and the value of the property to its owner. Moreover, the factors 

include considerations suggestive of both the income and market data (comparable sales) 

approaches, i.e., the recent sale of, or other transactions involving, comparable property, W.Va. 

C.S.R. 110-1P-2.1.1.6. (1991), and the income, if any, which the property actually produces and 

has produced within the next preceding three years, W.Va. C.S.R. 110-1P-2.1.1.9. (1991). 

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method of appraising commercial and industrial properties. The exercise of such 

discretion will not be disturbed upon judicial review absent a showing of abuse of 

discretion. 

See also, 84 C.J.S. Taxation § 575 (2010) (Within limits of fairness, “assessors and taxing authority” 

have discretion in choosing and applying the most accurate method of appraising properties.). 

Stone Brooke involved three consolidated appeals wherein the taxpayers challenged the 

valuation of their low income housing, multi-unit, apartment buildings. The assessors used the cost 

approach to determine the value of the properties for ad valorem tax purposes. The taxpayers 

maintained, however, that the income approach should have been used because that approach was 

the only appropriate method to ascertain the value of the subject properties, especially since the 

apartment buildings were within the federal Low Income Housing Tax Credits program. 

This Court, in Stone Brooke, recognizing an assessor’s discretion to choose and apply the 

most accurate method of appraising commercial property, expressed its reluctance to conclude that 

the income approach asserted by the taxpayers was the only appropriate approach to be used. 

Moreover, this Court determined that the assessors’ cost approach valuations were supported by 

substantial evidence and, therefore, were not plainly wrong. 

Nevertheless, although upholding the application of the cost approach, this Court in Stone 

Brooke reversed and remanded the cases, in part, for an analysis of whether the assessors properly 

considered the additional factors set forth in W.Va. C.S.R. 110-1P-2.1.1. to 2.1.4. (1991), for the 

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valuation of commercial real property. See, n. 7, supra. In that regard, to facilitate future appellate 

review, syllabus point 7 of Stone Brooke holds: 

When a circuit court reviews an appraisal of commercial real property made 

for ad valorem taxation purposes, the court shall, in its final order, make findings of 

fact and conclusions of law addressing the assessing officer’s consideration of the 

required appraisal factors set forth in W.Va. C.S.R. §§ 110-1P-2.1.1. to 2.1.4. (1991). 

In the case now before us, the circuit court’s September 20, 2011, order contained findings 

of fact and conclusions of law and stated that the Assessor, upon considering all three approaches, 

selected the market data (comparable sales) approach as the appropriate method to value the 79 units. 

The order specifically stated: “The Assessor had the sales prices of nearly identical units in the very 

same building in unforced sales during an arms-length transaction between willing buyers and sellers 

to use in determining the value of Pope Properties’ property.” In addition, the order indicated that, 

based on the testimony before the Board, the Assessor considered the various approaches, “as well 

as other factors contained in W.Va. C.S.R. § 110-1P-2.1.1., before ultimately determining that the 

market data approach was the appropriate method to use to value the 79 condominiums.” 

Moreover, the circuit court recognized the provisions of W.Va. Code, 36A-7-1 [1963], of the 

Unit Property Act which require that each unit, and its proportionate undivided interest in the 

common elements, “be assessed and taxed for all purposes as a separate parcel of real estate entirely 

independent of the building or property of which the unit is a part.” The Assessor’s documents of 

record in this case show a separate listing, an identifying number, and a “2011 Assessed Value” for 

each of the 79 units, thus evidencing compliance with the statute. 

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The requirement that each unit be assessed and taxed as a separate parcel, however, does not 

mandate which of the three approaches, cost, income or market data (comparable sales), must be 

selected by an assessor in appraising commercial real property for ad valorem tax purposes. The 

discretion remains with the assessor, subject to the standards of review discussed above.8 Here, as 

in Stone Brooke, this Court is of the opinion that the Assessor’s approach to valuation was supported 

by substantial evidence and was not plainly wrong. Using the market data approach, the Assessor 

valued the 79 condominiums at $63,700 for each of its 16 one-bedroom units and $70,000 for each 

of its 63 two-bedroom units. The Assessor looked at three sales of two owner-occupied 

condominium units within the same complex, Country Club Village Apartments. The sales, 

involving one and two-bedroom units, of comparable age and size to the 79 units, occurred between 

2008 and 2010 and sold for $64,000, $70,000 and $78,000. As explained by the circuit court, the 

Class II versus Class III distinction was not preclusive of the market data approach. See, n. 3, supra. 

Fundamentally, in challenging an assessor’s ad valorem tax valuation, the submission by the 

taxpayer of an alternative valuation is not enough. As this Court confirmed in syllabus point 9 of 

Mountain America, supra, there is a presumption that valuations for taxation purposes fixed by an 

assessor are correct. The taxpayer must prove that an error has been made. In this case, the circuit 

court found the valuation of Stephen A. Holmes, Pope Properties’ expert appraiser, to be 

problematic. As reflected in the September 20, 2011, order, the circuit court noted that Holmes 

8 We have stated herein that Pope Properties is unwarranted in asserting that the income 

approach is the sole method for determining the value of its 79 condominium units. Similarly, 

the Assessor may not claim that the market data (comparable sales) approach is the sole method 

to be used. The appropriate method may change from time to time in varying circumstances. 

Thus, an assessor’s duty to exercise sound discretion arises each tax year. 

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failed to provide the Board of Equalization and Review sufficient information to fully understand 

his income approach in valuing the 79 units. Moreover, the order stated: 

The only reason presented by Mr. Holmes as to why he “suspected” that the 

value of the owner-occupied condominium units would be different than the 

identical units that had been rental property is that “if you put all seventy-nine 

units on the market at the same time, I suspect that the value of the units individually 

would change.” However, neither Pope Properties nor its retained appraiser 

presented any testimony suggesting that there is any statute or regulation that 

would have forced Pope Properties to sell all seventy-nine units as a collective 

unit, instead of separately. 

The circuit court’s conclusion in the latter regard is correct. As noted above, W.Va. Code, 

36A-4-5 [1963], of the Unit Property Act states: “Units may be sold, conveyed, mortgaged, leased 

or otherwise dealt with in the same manner as like dealings are conducted with respect to real 

property and interests therein.” Also, pursuant to W.Va. Code, 36A-6-1 [1963], the property can be 

removed from the provisions of the Act by revocation. 

IV.
 

Conclusion
 

For the reasons expressed above, although the Assessor was mistaken in concluding that 

Pope Properties’ 79 units were non-commercial in nature, that conclusion did not affect the validity 

of the Assessor’s choice, or manner of application, of the market data approach in this case. In 

upholding the Assessor’s valuation and affirming the decision of the County Commission sitting as 

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the Board of Equalization and Review, the Circuit Court of Kanawha County properly determined 

that Pope Properties failed to demonstrate by clear and convincing evidence that the valuations and 

corresponding assessments for tax year 2011 were erroneous. Accordingly, the September 20, 2011, 

order of the circuit court is affirmed. 

Affirmed. 

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