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
      1
      Justice 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
                                        2
consolidated the two cases for trial.
     Ruling on pre-trial motions, the trial court granted partial
     2
      Prior 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
          3
estate.
     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
     3
      At 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.
