Brun v. Tivoli at Cardinal Forest Condominium Owners' Ass'n

Plaintiff, Kimberly A. Brun owns a condominium unit in Springfield, Virginia. The condominium complex known as “The Tivoli at Cardinal Forest.”

Brun, who has occupied the unit since late 1990, alleges that, commencing in December 1991, she has been disturbed by “excessive noise” emanating from the condominium unit directly above hers. Brun lodged complainants about the noise and brought this litigation action contending that, because of the noise, the value of her condominium has diminished. Brun asserts this diminution in value was caused by the “maintenance practices” of the Association and the Condominium Board. Brun further asserts that she has consequently suffered “sleep deprivation, nervousness, and other physical problems.”

Brun filed her suit against the Tivoli at Cardinal Forest Condominium Forest Owners’ Association (“Association”) and its Board of Trustees (“Board”), alleged to be the executive organ of the Association. On Motion of the Board and after due consideration, the court concludes that the Board, however, is not a proper party to the suit.

Pursuant to Virginia’s Condominium Act and § 55.79.80(B) of the Virginia Code, the Board holds irrevocable power as attorney-in-fact. See Va. Code Ann. § 55-79.39 et seq. (Michie 1995 & Supp. 1999). Thus with respect to the common elements of Brun’s claim, the Board is empowered to act on behalf of the Association. This code provision creates no liability on the part of the Board for Association actions.

Further, the Condominium Act specifically provides that actions are to be brought against the Association. § 55-79.80:1(A) states, “An action for *500tort alleging a wrong done (1) by any agent or employee of the declarant or of the unit owners’ association, or (2) in connection with the condition of any portion of the condominium which the declarant or the association has the responsibility to maintain, shall be brought against the declarant or the association, as the case may be.” Va. Code Ann. § 55-79.80:1 (Michie 1995 & Supp. 1999). Accordingly, the Board of Trustees is dismissed from this action.