Present: Carrico, C.J., Hassell, Keenan, Koontz, Kinser, 

and Lemons, JJ., and Compton, S.J. 

HOMESIDE LENDING, INC. 

v. Record No. 000590 OPINION BY JUSTICE CYNTHIA D. KINSER 

 January 12, 2001 

UNIT OWNERS ASSOCIATION OF 

ANTIETAM SQUARE CONDOMINIUM, ET AL. 

FROM THE CIRCUIT COURT FOR PRINCE WILLIAM COUNTY 

LeRoy F. Millette, Jr., Judge 

In this appeal, we address the question whether, under 

Code § 55-79.84(A) and (E), court costs, attorneys’ fees, 

and repair expenses incurred by a condominium unit owners’ 

association in instituting and maintaining a suit to 

enforce liens for unpaid assessments, as well as the fees 

of a special commissioner, have priority over payment of 

sums remaining due on a note secured by a first deed of 

trust. Because we conclude that Code § 55-79.84(A) 

establishes the priority of liens, we will reverse that 

part of the judgment of the circuit court directing payment 

of the costs and other reimbursements allowed under Code 

§ 55-79.84(E) before payment of the note secured by the 

first deed of trust. 

The appellee, Unit Owners Association of Antietam 

Square Condominium (Association), filed a bill of complaint 

pursuant to Code § 55-79.84 to enforce memoranda of liens 

and a judgment lien for unpaid condominium assessments. 
The Association named as defendants the owners of record of 

the residence at 2734 Bordeaux Place in Woodbridge, also 

known as Unit 25-B-3 in Phase VI, Block 25 of Antietam 

Square Condominium (the subject property); BancPlus 

Mortgage Corporation (BancPlus), appellant’s predecessorin-interest and the holder of a note secured by a purchase 

money deed of trust on the subject property; the trustees 

under that deed of trust; and a parks and recreation 

association that had two judgment liens against the subject 

property. 

 In response, BancPlus and the trustees filed an 

answer, asserting that the deed of trust securing payment 

of the note was a first lien against the subject property 

and therefore had priority over all claims asserted by the 

Association. BancPlus asked that no order be entered 

adverse to its interests; that the circuit court sustain 

the priority of its lien as to the subject property; and 

that any sale of the subject property be made subject to 

the lien of BancPlus, or in the alternative, that BancPlus 

be paid in full.1

 1

 The owners of the subject property, and the parks and 

recreation association also filed answers. However, after 

the subject property was sold, the circuit court entered a 

decree dismissing those parties. 

2
 On motion of the Association, the court entered a 

decree appointing a commissioner in chancery for the 

purpose of determining, inter alia, the amounts of the 

liens on the subject property and the priority of those 

liens. After conducting a hearing, the commissioner filed 

a report, stating that the lien of the deed of trust held 

by BancPlus was second only to the lien of any outstanding 

real estate taxes owed on the subject property. The 

commissioner in chancery further reported that the 

perfected liens and judgment liens for assessments filed by 

the Association were next in priority after the deed of 

trust. The circuit court subsequently confirmed the report 

of the commissioner in chancery and appointed a special 

commissioner to sell the subject property. 

A few months later, the appellant, HomeSide Lending, 

Inc. (HomeSide), was substituted as a party in the place of 

BancPlus since HomeSide was the current beneficiary under 

the deed of trust.2 HomeSide had already commenced 

foreclosure proceedings on the subject property because 

payment on the note secured by the deed of trust was in 

default. Upon receipt of notice of HomeSide’s impending 

foreclosure sale, the Association filed a motion seeking a 

 2

 A substitute trustee under the deed of trust was also 

named as a party to the proceedings. 

3
temporary restraining order to prevent HomeSide from 

proceeding with the sale. HomeSide decided to postpone 

(and later canceled) its scheduled foreclosure sale. 

However, when HomeSide again advertised the subject 

property for foreclosure, the Association renewed its 

motion for a temporary restraining order, and the circuit 

court granted the motion. The court enjoined HomeSide from 

proceeding with a foreclosure sale on the subject property 

and directed that the injunction remain in effect until the 

court entered a final decree in the cause and allocated the 

proceeds from the prospective sale of the subject property. 

 Approximately a month later, the special commissioner 

of sale moved the court to accept or reject a purchase 

offer for the subject property. The circuit court approved 

an amended purchase offer in the amount of $43,900 and 

directed that the liens and encumbrances of record on the 

subject property be transferred to the sale proceeds.3

 3

 The circuit court also fixed the amount of certain 

seller’s charges in connection with the sale, leaving the 

sum of $38,183.13 as the net proceeds from the sale of the 

subject property. These seller’s charges included a real 

estate commission in the amount of 6% of the sale price, 

the grantor’s tax, the purchaser’s costs in the amount of 

6% of the sale price, pro-rata and delinquent real estate 

taxes, and a settlement attorney’s fee in the amount of 

$250. 

4
 Nine months later, the special commissioner of sale 

filed the following proposed scheme for distributing the 

net sale proceeds in the amount of $38,183.13: 

1. $8,880 to the special commissioner of sale; 

2. $19,463.50 to the Association for attorney’s fees 

incurred in instituting and maintaining this suit; 

3. $4,010.84 to the Association for its costs incurred 

in the suit; 

4. $4,111.34 to the Association for repairs undertaken 

in order to market the subject property; and 

5. The balance of approximately $1,717.45, plus all 

accrued interest, to HomeSide. 

 HomeSide objected to the proposed distribution. It 

alleged that, as of December 31, 1999, the amount owed to 

HomeSide on the note secured by the deed of trust on the 

subject property was $72,038.14, exclusive of attorney’s 

fees and costs. HomeSide asked the court to reject the 

proposed scheme of distribution and to award HomeSide the 

entire sum of $38,183.13 (plus accrued interest) in partial 

satisfaction of its deed of trust. 

 After conducting a hearing on HomeSide’s objection, 

the circuit court entered a decree disbursing the sale 

proceeds in accordance with the proposed scheme of 

distribution filed by the special commissioner of sale. 

The court reasoned that the language used in Code § 55-

79.84 “means that, without limitation, the people who . . . 

5
brought the suit, incurred the attorney’s fees, [and] 

incurred the cost of the special commissioner are entitled 

to . . . reimbursement for costs and attorney’s fees.” We 

awarded HomeSide this appeal. 

 The question on appeal is whether the circuit court 

erred in approving a distribution of the sale proceeds that 

gave priority to the attorney’s fees, costs, and repair 

expenses incurred by the Association in instituting and 

maintaining this suit and in selling the property, and also 

to the fees of the special commissioner of sale, over the 

sums unpaid on HomeSide’s deed of trust. We believe that 

the plain meaning of the terms used in Code § 55-79.84(A) 

and (E) answer this question.4 Thus, in interpreting those 

subsections, we look no further than the words utilized by 

the General Assembly. Supinger v. Stakes, 255 Va. 198, 

205-06, 495 S.E.2d 813, 817 (1998) (citing City of 

Winchester v. American Woodmark Corp., 250 Va. 451, 457, 

464 S.E.2d 148, 152 (1995)). “We must . . . assume that 

the legislature chose, with care, the words it used when it 

enacted the relevant statute, and we are bound by those 

words as we interpret the statute.” Barr v. Town & Country 

 4

 The General Assembly amended Code § 55-79.84 in 2000. 

Those amendments are not applicable to this suit. 

Therefore, we will cite to the version of Code § 55-79.84 

in existence before the 2000 amendments. 

6
Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 

(1990). “The manifest intention of the legislature, 

clearly disclosed by its language, must be applied.” 

Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 

841 (1944). 

 Subsection (A) of Code § 55-79.84 provides that a 

condominium unit owners’ association “shall have a lien on 

every condominium unit for unpaid assessments levied 

against that condominium unit . . . .” That subsection 

further states that any such lien, 

once perfected, shall be prior to all other liens and 

encumbrances except (i) real estate tax liens on that 

condominium unit, (ii) liens and encumbrances recorded 

prior to the recordation of the declaration, and (iii) 

sums unpaid on any first mortgages or first deeds of 

trust recorded prior to the perfection of said lien 

for assessments and securing institutional lenders. 

As applicable at the time of these events, subsection (E) 

provided that “[t]he judgment or decree in an action 

brought pursuant to this section shall include, without 

limitation, reimbursement for costs and attorneys’ fees, 

together with interest at the maximum lawful rate for the 

sums secured by the lien . . . .” 

Contrary to the circuit court’s holding and the 

argument of the Association, subsection (E) of Code § 55-

79.84 did not establish an order of priority for the 

disbursement of proceeds from the sale of the subject 

7
property. That provision merely directed that any judgment 

or decree entered in an action brought pursuant to Code 

§ 55-79.84 to enforce a lien for unpaid condominium 

assessments must include provisions addressing 

reimbursement for costs and attorneys’ fees, and also 

interest on the sums secured by such lien. The additional 

requirement that the enumerated reimbursements be “without 

limitation” did not give priority to the payment of those 

reimbursements over the payment of other liens or 

encumbrances. In other words, subsection (E) allowed a 

unit owners’ condominium association to recover more than 

just the unpaid assessments when it brought a suit to 

enforce its lien, but nothing in that subsection addressed 

the priority of those allowed reimbursements in relation to 

other liens. 

Instead, the priority of liens is governed by 

subsection (A) of § 55-79.84. That provision gives the 

perfected lien of a condominium unit owners’ association 

for unpaid assessments priority over other liens except 

three specific types of liens, the third of which is 

relevant to this suit, i.e., “sums unpaid on any first 

mortgages or first deeds of trust recorded prior to the 

perfection of said lien for assessments.” Code § 55-

79.84(A). Thus, pursuant to that section, HomeSide’s deed 

8
of trust on the subject property has priority over not only 

the lien of the Association for unpaid assessments but also 

the Association’s attorneys’ fees, costs, and interest on 

the sums secured by its lien. This was the conclusion 

reached by the commissioner in chancery who reported that 

HomeSide’s lien was second in priority only to any 

outstanding real estate taxes. 

Therefore, we conclude that the circuit court erred in 

directing that the proceeds from the sale of the subject 

property be disbursed to the Association for its attorneys’ 

fees, costs, and repair expenses before payment to HomeSide 

on the note secured by its first deed of trust. Hence, we 

will reverse that portion of the judgment of the circuit 

court and remand the case to the court for entry of an 

order of distribution in accordance with this opinion. 

However, we will affirm the judgment of the circuit 

court with respect to the fees of the special commissioner 

of sale. The court appointed the special commissioner 

pursuant to the provisions of Code § 8.01-96. In pertinent 

part, that section states, “In decreeing a sale under any 

provisions of law, the court may . . . appoint one or more 

special commissioners to make such a sale.” The amount of 

a special commissioner’s fees under a decree for sale of 

property is fixed by statute. Under Code § 8.01-109, a 

9
court may allow “a commission of five percent on amounts up 

to and including $100,000, and two percent on all amounts 

above $100,000.” That section further specifies that, for 

the purposes of determining the commission, “each piece of 

property so sold shall constitute a separate sale, even 

though more than one piece of property is sold under the 

same decree.” The sale of the subject property in this 

suit was a judicial sale. See Staples v. Somers, 196 Va. 

581, 587-88, 84 S.E.2d 523, 526-27 (1954) (discussing 

incidents of judicial sale). By fixing the amount of the 

commission in a judicial sale, we believe that the General 

Assembly intended that such commission be paid from the 

proceeds of that sale. Cf. Code § 8.01-618.1 (paying fee 

out of fund in court to special commissioner for making 

report under Code § 8.01-617); Citizens Nat’l Bank of 

Charlottesville v. Manoni, 76 Va. 802, 808 (1882) (when 

property sold under decree of sale, taxed costs properly 

paid from proceeds). Thus, the circuit court properly 

directed payment of the fees of the special commissioner 

from the sale proceeds before any distribution of the funds 

to HomeSide. 

For these reasons, we will affirm in part, and reverse 

in part, the judgment of the circuit court and remand for 

further proceedings consistent with this opinion. 

10
Affirmed in part, 

reversed in part, 

 and remanded. 

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