Present: Carrico, C.J., Compton, Stephenson,1

 Lacy, Keenan, and 

Koontz, JJ., and Poff, Senior Justice 

ORCHARD GLEN EAST, INC. 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 961603 September 12, 1997 

BOARD OF SUPERVISORS OF 

PRINCE WILLIAM COUNTY 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

LeRoy F. Millette, Jr., Judge 

 In this appeal, we consider whether a condominium 

development, in which no individual units were sold or offered 

for sale by the developer, was properly assessed for real estate 

taxes based on the value of the individual units as separate 

parcels, rather than on the value of the development as a single 

parcel actually used as an apartment complex. 

 The essential facts are not in dispute. Orchard Glen East, 

Inc. (Orchard Glen) planned, designed, and constructed the 

development in question on its property in Prince William County 

(the County). Orchard Glen recorded the appropriate condominium 

declaration, or condominium instruments, in the land records of 

the County, subjecting the development to the provisions of the 

Condominium Act, Code §§ 55-79.39 through -79.103. Thereafter, 

beginning in 1988, it constructed 243 individual condominium 

units in a three-phase project. 

 As a result of an ongoing evaluation of the local housing 

market during an early stage of the construction, Orchard Glen 

 

 1Justice Stephenson participated in the hearing and decision 

of this case prior to the effective date of his retirement on 

July 1, 1997. 

 
decided to lease the individual units as apartments rather than 

to market them as condominium units. Consequently, as each phase 

of construction was completed, the units in that phase were 

leased as apartments. Orchard Glen has never sold or offered for 

sale as a condominium any of the individual units within its 

development even though, at all times relevant to the tax 

assessments at issue, it could have done so pursuant to the 

recorded declaration. 

 On December 28, 1994, Orchard Glen filed an application in 

the trial court, as authorized by Code § 58.1-3984, to correct 

alleged erroneous tax assessments by the County on the project 

for the years 1991, 1992, 1993, and 1994. Orchard Glen asserted 

that overassessments ranging from 2.8 to 6.8 million dollars had 

been made for those years. On May 4, 1995, Orchard Glen filed an 

application to reduce the assessment for 1995 by 5.7 million 

dollars. In each instance, Orchard Glen asserted that the 

assessments were erroneous because, rather than being made on its 

property as a single apartment complex, the assessments were made 

on the individual units as separate parcels. The trial court 

consolidated the two cases for trial.2

 Ruling on pre-trial motions, the trial court granted partial 

 

 2Prior to filing these applications, Orchard Glen had 

applied to the Prince William County Board of Equalization to 

have its property assessed for each of the years in question as a 

unitary apartment complex. The Board rejected Orchard Glen's 

request but reduced the County's assessment of all or some of the 

individual units for each of the years in question. The trial 

court ultimately vacated these reductions and adopted the fair 

market value assessments originally set by the County. The 

action of the trial court vacating the reductions granted by the 

Board is not an issue in this appeal. 
summary judgment for the County, finding that Code § 55-79.42 

permitted a taxing authority "to assess a condominium project as 

individual condominium units even if no individual unit has been 

sold," and further finding that Code § 58.1-3202, requiring local 

taxing authorities to assess multi-unit real estate leased to 

residential tenants without regard to the property's potential 

value as a condominium, had no application to a property already 

subject to condominium instruments. 

 At the subsequent evidentiary hearing, the principal 

evidence presented by the parties consisted of expert testimony 

concerning the method of assessing the property to determine its 

fair market value for tax purposes. Orchard Glen's position was 

that the property should be assessed as an apartment complex and 

in comparison to other properties being similarly used because 

this was its highest and best use under market conditions. The 

County maintained that, so long as the condominium declaration 

remained in force, the highest and best use of the property was 

as a condominium and, thus, the individual units were to be 

assessed according to their value as separate parcels of real 

estate.3

 The trial court entered judgment for the County, finding 

that the assessment of the property as a unitary apartment 

complex "would result in the property being assessed at its 'use 

 

 3At trial and on appeal the County has conceded that Orchard 

Glen merely had to terminate the condominium instruments in order 

for the project to be appraised as a unitary apartment complex. 

Code § 55-79.72:1(A). The parties agree that since the trial of 

this case this has been done, and the project is now assessed as 

a single parcel. 
value' which, in this case, is different and less than the 

property's 'fair market value'" as individual condominium units, 

for which the trial court found that there was an active market 

in the County. The trial court further found that the parties 

had stipulated to the presumption of correctness in the County's 

assessment of the individual units and that Orchard Glen "failed 

to produce sufficient evidence that the County's original 

assessments . . . were the result of manifest error." We awarded 

Orchard Glen this appeal. 

DISCUSSION

 We begin our analysis of the issues presented in this appeal 

with a focus on the primary assertion of Orchard Glen. The 

essence of that assertion is that during the tax years in 

question its project was an apartment complex and not a 

condominium and, thus, its project was erroneously taxed as a 

condominium. 

 Although Orchard Glen had recorded the appropriate 

condominium instruments, it asserts that because it leased rather 

than sold the individual condominium units it had not created 

"statutorily complete" condominium units in its project. In 

support of this assertion, Orchard Glen relies upon the statutory 

definition of condominium found in Code § 55-79.41 which provides 

that: 

 "[c]ondominium" means real property . . . lawfully 

submitted to this chapter by the recordation of 

condominium instruments . . . . No project shall be 

deemed a condominium within the meaning of this chapter 

unless the undivided interests in the common elements 

are vested in the unit owners. 
(Emphasis added). 

 Orchard Glen contends that the emphasized language in this 

statutory definition means that no condominium exists until at 

least one individual unit is sold. This is so, it reasons, 

because, under common law principles, it cannot be a tenant in 

common with itself in the common elements of the project. Thus, 

Orchard Glen concludes that, as the owner of all the individual 

units which it leased to individual tenants, it owned an 

apartment complex and not a condominium complex. We disagree. 

 As estates in land, condominiums are creatures of statute 

wholly unknown at common law, see Cooper v. Kolberg, 247 Va. 341, 

348, 442 S.E.2d 639, 643 (1994), and the creation of a 

condominium is controlled by the Condominium Act. Code 

§ 55-79.45 specifically addresses the creation of a condominium 

and provides that "[n]o condominium shall come into existence 

except by the recordation of condominium instruments pursuant to 

the provisions of this chapter." Code § 55-79.72:1(A) provides 

that "[i]f there is no unit owner other than the declarant, the 

declarant may unilaterally terminate the condominium." We have 

previously held that the rights and liabilities afforded to a 

condominium under the Condominium Act accrue at the time the 

master deed, now the condominium instruments, is recorded. See

United Masonry, Inc. v. Jefferson Mews, Inc., 218 Va. 360, 377, 

237 S.E.2d 171, 182 (1977). Accordingly, we hold that a 

condominium is created upon the recordation of the appropriate 

condominium instruments and is not dependent upon the subsequent 

sale of one of the individual condominium units within the 
condominium project. For these reasons, we reject Orchard Glen's 

assertion that its project was an apartment complex and not a 

condominium complex for purposes of the issues presented in this 

appeal. 

 For similar reasons, we reject Orchard Glen's contention 

that Code § 55-79.42 requires a taxing authority to treat a 

condominium in which no units have been transferred as a single 

parcel. Orchard Glen relies on language in that statute which 

directs that the unit of "any unit owner other than the declarant 

. . . shall be separately assessed and taxed." Id. However, 

nothing in Code § 55-79.42 prohibits the taxing authority from 

treating as separate parcels of real estate any completed units 

still in the possession of the declarant. To the contrary, the 

statute expressly states that once a unit is completed, it 

"constitutes for all purposes a separate parcel of real estate." 

Id. (emphasis added.) 

 Read in its full context, Code § 55-79.42 permits the taxing 

authority to assess individually each completed unit in a 

condominium project without regard to ownership, and to include 

in that assessment a proportional share of the assessment of 

common areas of the project which are not subject to withdrawal 

or conversion by the declarant. Common areas which remain 

subject to withdrawal or conversion by the declarant are to be 

assessed separately as the sole property of the declarant. 

Orchard Glen's project was fully developed, with no common areas 

subject to withdrawal or conversion. Accordingly, each unit was 

subject to assessment as an individual parcel. 
 We also find no merit in Orchard Glen's assertion that Code 

§ 58.1-3202 bars the County from assessing its property as a 

condominium rather than as a unitary apartment complex. 

Code § 58.1-3202, in pertinent part, reads: 

 . . . the fair market value of multi-unit real estate 

leased primarily to residential tenants shall be 

determined without regard to its potential for 

conversion to condominium or cooperative ownership. A 

sale of apartment property shall not be presumed to be 

for such conversion unless overt action which is a 

prerequisite to conversion by the buyer has been taken 

within three months from the recordation of the deed. 

The express language of the statute demonstrates that it applies 

to property which has not been made the subject of recorded 

condominium instruments. Accordingly, the trial court correctly 

 determined that this statute had no application to Orchard 

Glen's property because at all times relevant to the assessments 

that property was a condominium and no "conversion to 

condominium" was involved. 

 We next consider Orchard Glen's contention that the amount 

of the assessments of the property was disproportionate to that 

of other properties in the County which were assessed as unitary 

apartment complexes. Orchard Glen contends that since its 

property was also being used as a unitary apartment complex, the 

assessment of the property as a condominium complex violated the 

constitutionally mandated requirement of uniformity in tax 

assessments. See Va. Const. art. X, §§ 1 & 2. We disagree. 

 "The constitutional mandate requires uniformity in the 

assessment of 'properties having like characteristics and 

qualities, located in the same area.'" Lee Gardens Arlington 
Limited Partnership v. Arlington County Board, 250 Va. 534, 538, 

463 S.E.2d 646, 648 (1995)(quoting Smith v. City of Covington, 

205 Va. 104, 108, 135 S.E.2d 220, 223 (1964)). Article X, § 1 

expressly provides that "[a]ll taxes shall be levied and 

collected under general laws and shall be uniform upon the same 

class of subjects within the territorial limits of the authority 

levying the tax." (Emphasis added.) 

 The class within which Orchard Glen's property fell during 

the assessments at issue was that of property subject to recorded 

condominium instruments in which the individual units were 

capable of being offered for immediate sale at the owner's 

option. The properties to which Orchard Glen would have the 

County compare its assessment for uniformity purposes were not 

subject to condominium instruments and, thus, were not capable of 

being sold as individual units. Accordingly, these properties 

were not of "like characteristics and qualities" to Orchard 

Glen's property, and they do not present an appropriate 

comparison for determining the uniformity of the County's 

assessment of the property in question. 

 Finally, we consider whether the trial court correctly 

determined that Orchard Glen failed to carry its burden of 

rebutting the presumption of correctness afforded to the County's 

assessment. As noted above, Orchard Glen does not dispute this 

standard, and at trial relied primarily on its assertions that 

its project was not a condominium complex or that, even if it 

was, market conditions dictated that its highest and best use was 

as an apartment complex. The County's position, supported by the 
testimony of its expert witnesses, showed that a market existed 

for condominiums and that the fair market value of the project if 

marketed as a condominium complex exceeded the fair market value 

of the project used as an apartment complex. The trial court 

considered this evidence and determined that Orchard Glen had not 

met its burden. We agree. 

 Although there was a conflict in the expert evidence, that 

conflict alone was insufficient to overcome the presumption 

favoring the County. "Courts should be reluctant, within 

reasonable bounds, to change assessors' judgments because courts 

are not duly constituted tax authorities." Board of Supervisors 

of Fairfax County v. Telecommunications Industries, Inc., 246 Va. 

472, 476, 436 S.E.2d 442, 444 (1993). Here, there was sufficient 

evidence supporting the County's original assessment of the 

project's fair market value at its highest and best use as a 

condominium complex. The evidence presented by Orchard Glen 

placed the issue, at best, in equipoise, and, thus, was 

insufficient to overcome the presumption in favor of the taxing 

authority's judgment. See id. at 475, 436 S.E.2d at 444; Board 

of Supervisors of Fairfax County v. Donatelli & Klein, 228 Va. 

620, 627, 325 S.E.2d 342, 345 (1985). 

 For these reasons, we will affirm the judgment of the 

circuit court. 

Affirmed.