Bekken v. Greystone Residential Ass'n, Inc.
Decision Date | 13 January 2017 |
Docket Number | 2150365. |
Parties | Andrew BEKKEN v. GREYSTONE RESIDENTIAL ASSOCIATION, INC., and Greystone Architectural Review Committee |
Court | Alabama Court of Civil Appeals |
Tom E. Ellis of Ellis & Bloom, L.L.C., Birmingham, for appellant.
Raymond P. Fitzpatrick, Jr., Birmingham; and H.C. Ireland III of Porterfield, Harper, Mills, Motlow & Ireland, P.A., Birmingham, for appellees.
On Application for Rehearing
This court's opinion of September 16, 2016, is withdrawn, and the following is substituted therefor.
Andrew Bekken appeals from the judgment of the Shelby Circuit Court ("the trial court") granting Greystone Residential Association, Inc. ("the association"), and the Greystone Architectural Review Committee ("the committee") an injunction to enforce residential restrictive covenants. Bekken argues that the restrictive covenants contain ambiguities; that the trial court should have applied the relative-hardship test before issuing the injunction; and that the affirmative defenses of statute of limitations, laches, and unclean hands applied in this case. We determine that Bekken's arguments fail to establish a ground for reversal. Accordingly, we affirm the judgment.
In July 2007, Bekken purchased a residence on Greymoor Road ("the property") in the Greystone subdivision ("the subdivision") located in Shelby County. The pool area and backyard of the property adjoins the Greystone Founders golf course around which the subdivision was developed. It is undisputed that the property is subject to the provisions of the "Greystone Residential Declaration of Covenants, Conditions, and Restrictions" ("the restrictive covenants"). The restrictive covenants were recorded in the Shelby Probate Court in 1990. The committee acts on behalf of the association in considering proposed plans to alter exterior features of properties in the subdivision and in enforcing compliance with the restrictive covenants. After purchasing the property, Bekken removed a wall enclosing the pool area on the property and made other improvements on the property.
On January 23, 2014, the association and the committee filed a complaint against Bekken in the trial court, alleging that Bekken had removed the wall enclosing the pool area on the property and had materially altered the landscaping on the property without the approval of the committee as required by the restrictive covenants.
The association and the committee initially sought declaratory relief and monetary damages in addition to injunctive relief and attorney fees. Bekken filed an answer generally denying the allegations in the complaint and asserting, among others, the defenses of laches, statute of limitations, and unclean hands. The claims for declaratory relief and monetary damages were later dismissed by the association and the committee.
On May 14, 2015, the association and the committee filed a motion for a summary judgment, arguing that Bekken had violated the restrictive covenants by removing the wall around the pool area, by expanding the concrete deck around the pool, and by altering the landscaping on the property without the approval of the committee. In materials filed in opposition to the motion, Bekken argued, among other things, that the action was barred by the six-year statute of limitations set out in § 6–2–34, Ala. Code 1975. The motion for a summary judgment was denied.
The trial court conducted a bench trial on October 21, 2015, and November 5, 2015, at which it received ore tenus testimony and documentary exhibits. The evidence established that the 2007 deed conveying the property to Bekken contained the notation that the conveyance was subject to "all matters of public record, including, but not limited to easements, restrictions of record, and other matters which may be viewed by observation." Below the reference to "restrictions of record," the deed states: "IN WITNESS WHEREOF, the undersigned have hereunto set our hands and seals on this the 13th day of July, 2007." (Capitalization in original.) The restrictive covenants provide that all alterations to the exterior of a property located within the subdivision, which includes the property, must be approved by the committee; § 5.05 of the restrictive covenants provides, in pertinent part: ,
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