Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Agee, JJ., and Russell, S.J. 

JOSEPH M. KUZNICKI, ET AL. 

v. Record No. 060878 OPINION BY JUSTICE CYNTHIA D. KINSER 

 January 12, 2007 

ROBERT D. MASON, ET AL. 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Ray W. Grubbs, Judge 

 In this appeal involving a condominium unit’s limited 

common element, the dispositive issue concerns whether the 

owners of the condominium unit had standing to institute 

this suit seeking injunctive relief and damages against two 

other condominium unit owners for their actions that 

allegedly decreased the size of the limited common element. 

We conclude that, under Code §§ 55-79.53(A) and –79.80(B), 

only a condominium unit owners’ association has standing to 

sue for claims related to common elements and limited 

common elements. 

RELEVANT FACTS AND PROCEEDINGS1

Joseph M. Kuznicki and Padmaja Polavarapu 

(collectively, the Kuznickis), and Robert D. Mason and 

Sherril Mason (collectively, the Masons) are owners of 

“[c]ondominium units” in a “[c]ondominium” complex, as 

 1

 We recite the facts as presented in a written 

statement of facts made a part of the record pursuant to 

Rule 5:11(c). 
2

those terms are defined in Code § 55-79.41. The Masons’ 

unit is located on the bottom level of a building that 

houses multiple condominium units. The Kuznickis’ unit is 

situated within the same building, immediately above the 

Masons’ unit. 

The master deed governing the condominium units 

designates “yard areas” as limited common elements and 

states: “The owner of a Family Unit to which the yard area 

attaches shall have the exclusive use of that yard area, 

which use shall be to the exclusion of all other co-owners 

of all other Family Units.”2

 The dimensions of the 

Kuznickis’ limited common element are ten feet by ten feet. 

When the condominium complex was constructed, cooling 

units were installed for the parties’ condominium units on 

separate concrete slabs located on the ground adjacent to 

the building.3 The Masons’ cooling unit measured 29 inches 

by 20 inches, and both it and the Kuznickis’ cooling unit 

were situated on the Kuznickis’ limited common element. 

The parties agreed that the Masons have an easement over 

the Kuznickis’ limited common element with regard to the 

placement of and access to their cooling unit. 

 2

 The record in this case contains only two pages of 

the master deed. Thus, we do not know whether the master 

deed defines the term “Family Unit.” 

3

 As originally constructed, the condominium units had 

heating units separate from the cooling units. 
3

 In October 2004, the Masons experienced mechanical 

problems with both their cooling and heating units. 

Consequently, the Masons replaced their cooling unit with a 

“heat pump,” measuring 42 inches by 30 inches. The heat 

pump is located on the spot where the original cooling unit 

was situated. In order to accommodate the larger heat 

pump, the workmen who installed the heat pump had to cut 

down shrubbery next to the Masons’ cooling unit. The 

Masons did not discuss with, or seek the approval of, the 

Kuznickis or the Piedmont Council of Co-Owners (the 

Council),4

 before installing the heat pump or removing the 

shrubbery. 

At a November 2004 meeting of the Council, the 

Kuznickis expressed concern about the newly installed heat 

pump and the fact it was larger than the cooling unit it 

replaced. The Council retroactively approved the Masons’ 

installation of the heat pump unit, noting that the Masons 

had satisfied the Council’s criteria for approval. The 

Council did, however, require the Masons to reimburse the 

Council for the cost of replacing the shrubbery. 

 The Kuznickis subsequently filed a bill of complaint 

against the Masons, seeking, among other things, removal of 

 4

 The Council is apparently the condominium unit 

owners’ association although that fact is not clear from 

the record. 
4

the heat pump from their limited common element and 

monetary relief. In defense, the Masons filed a special 

plea, a motion to dismiss, and a demurrer, asserting, in 

part, that the Kuznickis lacked standing to bring the suit. 

After hearing oral argument from both parties, the circuit 

court granted the Masons’ special plea and motion to 

dismiss, basing its decision on the holding in Virginia Hot 

Springs Company v. Lowman, 126 Va. 424, 430, 101 S.E. 326, 

328 (1919) (new use of an easement is permissible if it 

does not place an additional burden on the servient 

estate). 

The Kuznickis filed a motion for rehearing, arguing 

that an increase in the width of an easement is not 

permissible. See Willis v. Magette, 254 Va. 198, 204, 491 

S.E.2d 735, 738 (1997). After hearing additional argument, 

the circuit court, in a letter opinion, concluded “the 

newly installed heat pump is the same nature and character 

as the original cooling unit, serving the same purpose as 

the original, except adding heat.” The circuit court 

further concluded “the size of the heat pump does not 

require a significant appropriation of additional space and 

has not placed any additional burden upon the limited 

common element.” The circuit court therefore affirmed its 

dismissal of the Kuznickis’ suit. The circuit court, 
5

however, chose not to rule on the standing issue raised by 

the Masons. This appeal followed. 

ANALYSIS 

On appeal, the Kuznickis assign three errors to the 

circuit court’s judgment. The dispositive issue, however, 

is raised in the Masons’ assignment of cross-error. They 

assert that the circuit court erred by failing to rule 

“that only the unit owners’ association, and not the 

Kuznickis, had standing to bring the claims asserted in the 

[bill of complaint].”5

 Relying primarily on the provisions 

of Code §§ 55-79.53(A) and –79.80(B), the Masons argue that 

the General Assembly granted exclusive control over common 

elements, including limited common elements, to unit 

owners’ associations and that the specific language of Code 

§ 55-79.53(A) confers standing only upon unit owners’ 

associations to sue for claims or actions regarding common 

elements. 

The Kuznickis disagree and assert that, because they 

have the right to the exclusive use of the limited common 

element, i.e., the yard area, they are asserting a claim 

for a violation of an individual right as opposed to a 

right held in common by all unit owners. Additionally, 

 5

 We find no merit in the Kuznickis’ argument that the 

Masons did not preserve the standing issue presented in the 

assignment of cross-error. 
6

they contend the Masons’ installation of the heat pump 

violated their individual right not to have their limited 

common element altered without their consent as required by 

Code § 55-79.57(A).6

 Thus, according to the Kuznickis, this 

is a “proper case” which they, as “aggrieved unit owners,” 

may maintain “on their own behalf” under Code § 55-

79.53(A). 

“The point of standing is to ensure that the person 

who asserts a position has a substantial legal right to do 

so and that his rights will be affected by the disposition 

of the case.” Cupp v. Board of Supervisors of Fairfax 

County, 227 Va. 580, 589, 318 S.E.2d 407, 411 (1984). With 

regard to the standing issue before us, we note that the 

General Assembly, in 1981, amended the Condominium Act, 

Code §§ 55-79.39 through –79.103 (the Act), to give 

condominium unit owners’ associations “the power to act as 

attorney-in-fact for the individual unit owners in 

asserting or defending actions relating to the common 

elements.” Chesapeake House on the Bay, Inc. v. Virginia 

Nat’l Bank, 231 Va. 440, 442, 344 S.E.2d 913, 915 (1986) 

(citing Code § 55-79.80(b1) (1981 Acts ch. 146)). Since 

 6

 Although the Kuznickis assert on appeal that the 

Masons’ installation of the heat pump violated the 

provisions of Code § 55-79.57(A), they alleged in the bill 

of complaint that the Masons’ actions violated Code § 55-

79.68. 
7

the statutory scheme before that amendment did not grant 

power to a unit owners’ association to maintain an action 

with regard to common elements, we held in Chesapeake House

that the unit owners’ association there had no standing to 

bring an action to recover damages for alleged defects in 

the construction of the common elements in a condominium 

project. Id. at 442, 344 S.E.2d at 915. In a subsequent 

case, Rotonda Condominium Unit Owners Association v. 

Rotonda Associates, 238 Va. 85, 380 S.E.2d 876 (1989), we 

explained that the effect of the 1981 amendment to the Act 

was “to transfer irrevocably, by operation of law, [to the 

unit owners’ association] whatever rights of action the 

individual unit owners might have had” concerning common 

elements. Id. at 89, 380 S.E.2d at 879. 

The statute at issue in both cases, Code § 55-79.80, 

addressed the control of common elements by condominium 

unit owners’ associations and, as relevant to the issue of 

standing, currently states: 

Except to the extent prohibited by the 

condominium instruments, and subject to any 

restrictions and limitations specified therein, 

the executive organ of the unit owners’ 

association, if any, and if not, then the unit 

owners’ association itself, shall have the 

irrevocable power as attorney-in-fact on behalf 

of all the unit owners and their successors in 

title with respect to the common elements, 

including without limitation the right, in the 

name of the unit owners’ association, . . . (ii) 
8

to assert, through litigation or otherwise, 

defend against, compromise, adjust, and settle 

any claims or actions related to common elements

. . . . 

Code § 55-79.80(B)(emphasis added).7

The Kuznickis do not dispute that a unit owners’ 

association has broad powers with regard to common 

elements. They claim, however, that the provisions of Code 

§ 55-79.80(B) divest an individual unit owner only of 

standing to bring an action with regard to rights held in 

common by all unit owners and that a unit owner still has 

standing to maintain an action concerning an individual 

right not held in common by all unit owners. In support of 

their argument, the Kuznickis rely particularly on the 

provisions of Code § 55-79.53(A), which state: 

The declarant, every unit owner, and all 

those entitled to occupy a unit shall comply with 

all lawful provisions of this chapter and all 

provisions of the condominium instruments. Any 

lack of such compliance shall be grounds for an 

action or suit to recover sums due, for damages 

or injunctive relief, or for any other remedy 

available at law or in equity, maintainable by 

the unit owners’ association, or by its executive 

organ or any managing agent on behalf of such 

association, or, in any proper case, by one or 

more aggrieved unit owners on their own behalf or 

as a class action. A unit owners’ association 

shall have standing to sue in its own name for 

any claims or actions related to the common 

 7

 The language presently designated as subsection B of 

Code § 55-79.80 has not substantially changed since it 

became effective on July 1, 1981. See 1981 Acts ch. 146. 
9

elements as provided in subsection B of § 55-

79.80. 

Code § 55-79.53(A) (emphasis added).8

This subsection was the focus of the Court’s decision 

in Frantz v. CBI Fairmac Corporation, 229 Va. 444, 331 

S.E.2d 390 (1985). The issue in Frantz was whether a 

condominium unit owners’ association had the authority to 

compromise a claim against a condominium developer over the 

objection of individual unit owners. Id. at 445, 331 

S.E.2d at 392. Because the right claimed in a particular 

parcel of real estate, if established, would be held in 

common by all the unit owners, we concluded that the unit 

owners’ association, and not the individual unit owners, 

had standing both to assert and compromise the claim. Id.

at 449-51, 331 S.E.2d at 394-95. In reaching that 

conclusion, we explained: 

[T]he phrase, “in any proper case,” limits, rather 

than expands, the instances in which actions or suits 

are maintainable by unit owners pursuant to the 

authority of Code § 55-79.53. Hence, while a unit 

owner may assert a claim under the provisions of the 

Condominium Act for the violation of some individual 

right, Code § 55-79.53 contemplates that a violation 

of a right held in common by all unit owners shall be 

maintained by a unit owners’ association, unless the 

association fails or refuses to assert the common 

right. 

 8

 The General Assembly amended Code § 55-79.53(A) in 

1993 to add the last sentence in the quoted portion of 

subsection (A). 1993 Acts ch. 667. 
10

Id. at 450-51, 331 S.E.2d at 395 (footnote omitted). 

 The Kuznickis use this explanation to argue they have 

standing to bring this suit against the Masons because 

their claim for violation of their limited common element, 

which they characterize as an individual right, falls 

within the meaning of the phrase “in any proper case.” The 

Kuznickis’ argument assumes that the standing given to a 

condominium unit owners’ association by the General 

Assembly to bring in its own name actions related to common 

elements does not include actions concerning limited common 

elements. This assumption, which is the foundation of 

their entire argument, is flawed for several reasons. 

First, the Kuznickis’ position is inconsistent with 

the Act’s definitions of certain terms. The Act defines 

the term “[u]nit” as “a portion of the condominium designed 

and intended for individual ownership and use,” and the 

term “[c]ommon elements” as “all portions of the 

condominium other than the units.” Code § 55-79.41. More 

importantly, the Act defines the term “[l]imited common 

element” as “a portion of the common elements reserved for 

the exclusive use of those entitled to the use of one or 

more, but less than all, of the units.” Id. (emphasis 

added). 
11

Next, the section of the master deed dealing with 

limited common elements states that “[t]he owner of a 

Family Unit to which the yard area attaches shall have 

exclusive use of that yard area, which shall be to the 

exclusion of all other co-owners of all other Family 

Units.” (Emphasis added.) While this language gives the 

Kuznickis exclusive use of the yard area at issue, it is 

apparent from the actions of the parties in this case that 

the Council retained certain control over the area 

designated as the Kuznickis’ limited common element. The 

Kuznickis first expressed their concerns about the 

installation of the heat pump to the Council. The Masons 

sought and obtained, albeit retroactively, the Council’s 

approval for installing the heat pump. Indeed, the Council 

noted that the Masons had satisfied the criteria for 

approval.9

 Additionally, the Council required the Masons to 

reimburse it for replacing the shrubbery that was removed 

incident to the installation of the heat pump. 

Finally, our decision in Mozley v. Prestwould Board of 

Directors, 264 Va. 549, 570 S.E.2d 817 (2002), demonstrates 

 9

 As already noted, the record in this case contains 

only part of the master deed. Therefore, we do not know 

the type or extent of control retained by the Council over 

the limited common elements. Nor do we know the Council’s 

criteria for installing a heat pump in the place of a 

cooling unit. 
12

that the standing afforded a condominium unit owners’ 

association to sue for claims or actions relating to common 

elements does, indeed, pertain to claims or actions 

concerning limited common elements. Id. at 555, 570 

S.E.2d at 821. There, we decided a condominium unit 

owners’ association was entitled to an award of attorney 

fees as a prevailing party in a declaratory judgment suit 

brought by an individual unit owner to determine the 

validity of an assessment for replacing certain windows 

that the unit owners’ association contended were limited 

common elements. Id. at 557, 570 S.E.2d at 822. To answer 

the unit owner’s argument that the suit was not the type of 

litigation for which Code § 55-79.53(A) allowed an award of 

attorney fees to the prevailing party, we discussed the two 

types of litigation authorized by that subsection. The 

first type pertains to “actions for failure to comply with 

provisions contained in relevant condominium instruments or 

in the Act.” Id. at 555, 570 S.E.2d at 821. A unit 

owners’ association, its executive organ or managing agent, 

or “aggrieved unit owners on their own behalf or as a class 

action” may bring such actions for noncompliance. Id.

The second type of litigation concerns actions related 

to common elements. Id. With regard to the second type of 

litigation, Code § 55-79.53(A) specifically states, “A unit 
13

owners’ association shall have standing to sue in its own 

name for any claims or actions related to the common 

elements as provided in subsection B of § 55-79.80.” 

(Emphasis added.) As already discussed, Code § 55-79.80(B) 

irrevocably gives a unit owners’ association the right to 

“assert, through litigation or otherwise, defend against, 

compromise, adjust, and settle any claims or actions 

related to common elements.” Rotonda, 238 Va. at 88, 380 

S.E.2d at 878. 

 We then held in Mozley that the action at issue did 

not fall within the first type of litigation because the 

unit owner did not fail to comply with any provision of 

relevant condominium instruments or the Act. 264 Va. at 

555, 570 S.E.2d at 821. We concluded, however, that the 

declaratory judgment suit brought by the unit owner and the 

cross-bill filed by the unit owners’ association were 

“representative of [the] second type of litigation 

authorized by Code § 55-79.53(A).” Id. We explained: 

The [unit owner’s association] was required to 

defend against [the unit owner’s] bill of 

complaint seeking a declaration that the 

replacement windows were not “limited common 

elements” as defined by the Act. The . . . 

cross-bill was a separate assertion by the [unit 

owners’ association], through litigation, of its 

claim that those windows were, in fact, “limited 

common elements.” 
14

Id. at 555-56, 570 S.E.2d at 881. Implicit in our decision 

was the recognition that the standing given to a 

condominium unit owners’ association to bring actions 

related to common elements necessarily includes actions 

concerning limited common elements. Otherwise, the unit 

owners’ association in Mozley would not have been entitled 

to an award of attorneys’ fees because the litigation there 

involved limited common elements. 

In light of the language of Code §§ 55-79.53(A) and –

79.80(B) and our decision in Mozley, we emphasize two 

points. First, the provisions of Code § 55-79.53(A) give 

standing to a unit owner to assert “in any proper case” 

only claims arising from lack of compliance with the Act or 

relevant condominium instruments. Second, standing to 

institute claims or actions concerning common elements, 

including limited common elements, is restricted to 

condominium unit owners’ associations. 

Thus, we conclude that the Kuznickis did not have 

standing to bring the present suit for injunctive relief 

and damages for the Masons’ installation of their heat pump 

on the spot where their cooling unit was previously 

located. Any claim the Kuznickis may have lies against the 

Council with regard to its approval of the Masons’ 

installation of the heat pump. Standing to raise a claim 
15

about the limited common element vis-à-vis the installation 

of the heat pump rests with the Council. 

CONCLUSION 

For these reasons, we hold that the circuit court 

erred by failing to address the standing issue asserted by 

the Masons. We nevertheless conclude the circuit court 

properly dismissed the Kuznickis’ bill of complaint and 

will therefore affirm the judgment of the circuit court.10 

See State Farm Mut. Auto. Ins. Co. v. Seay, 236 Va. 275, 

280 n.3, 373 S.E.2d 910, 913 n.3 (1988). 

Affirmed. 

 10 Because the issue of standing is dispositive, we 

will not address the Kuznickis’ assignments of error.