Harrington v. Blackston
| Decision Date | 09 February 1995 |
| Docket Number | No. 2337,2337 |
| Citation | 319 S.C. 1,459 S.E.2d 309 |
| Parties | Jean H. HARRINGTON and Fred L. Love, Respondents, v. Devoe BLACKSTON and Homeowners' Association of Leeward Landing, Inc., Defendants, of whom Devoe Blackston is, Appellant, and Homeowners' Association of Leeward Landing, Inc., is, Respondent. . Heard |
| Court | South Carolina Court of Appeals |
Larry C. Brandt of Walhalla and Michael J. Smith, Seneca, for appellant.
Samuel F. Albergotti, Anderson, for respondent.
Jean H. Harrington, Anderson and Fred L. Love, Central, both pro se.
ORDER TO WITHDRAW ORIGINAL OPINION AND TO SUBSTITUTE OPINION
AND TO DENY PETITION FOR REHEARING
The previous Opinion in the above referenced case, filed April 17, 1995, is hereby withdrawn and the Amended Opinion is substituted and attached hereto. Except to the extent this substituted opinion may grant relief sought in the Petition for Rehearing, the Petition for Rehearing is otherwise denied as we have been unable to discover any other material fact or principle of law that was overlooked, misconstrued or disregarded.
IT IS SO ORDERED.
/s /Jasper M. Cureton, J.
For The Court
In this declaratory judgment action, Devoe Blackston appeals the trial court's finding that a 30.93 acre tract of land is subject to the Horizontal Property Act and the restrictions in the Master Deed. The facts of this case are set out in our opinion, Harrington v. Blackston, 311 S.C. 459, 429 S.E.2d 826 (Ct.App.1993), which ordered a remand of the case for further consideration.
The order on remand required the trial court to determine the validity of the Master Deed, the manner in which the Master Deed and associated documents restrict the 30.93 acres not encompassed in Phase One 1, and whether Blackston is entitled to a reformation of his foreclosure deed to free it from all restrictions and covenants of the Master Deed. The trial court held the Master Deed and allied documents were unambiguous and had clearly submitted the entire 30.93 acre tract to the condominium regime. He further concluded the tract was a common element to the 12.82 acres comprising Phase One.
When a controversy regarding the rights of condominium unit owners arises, the court must examine all relevant provisions of the Horizontal Property Act, master deed and allied documents. Carney v. Donley, 261 Ill.App.3d 1002, 199 Ill.Dec. 219, 633 N.E.2d 1015 (1994). These sources of rights and obligations of the condominium owners must be read together, in relation to each other and harmonized, if possible. Mountain View Condominiums Homeowners Ass'n, Inc. v. Scott, 180 Ariz. 216, 883 P.2d 453 (1994); see also Roundtree Villas Ass'n, Inc. v. 4701 Kings Corp., 282 S.C. 415, 321 S.E.2d 46 (1984) ().
Blackston argues that because the Master Deed did not meet the requirements of the Horizontal Property Act as to the 30.93 acres not encompassed in Phase One, that land is not part of the regime. We reluctantly agree.
In South Carolina, an owner of the fee or leasehold interest in real estate may declare it to be subject to a condominium form of ownership by recording a master deed and other required documents with the proper public authorities. S.C.Code Ann. § 27-31-30 (Rev.1991). Upon the proper recordation of these documents, the declarant's interest in the property subject to the declaration is subdivided both horizontally and vertically. 15A Am.Jur.2d Condominiums § 14 (1976). Thus, individual subdivided apartments and appurtenant common elements may be individually conveyed and encumbered. S.C.Code Ann. § 27-31-40 (Rev.1991); see also Resolution Trust Corp. v Eagle Lake and Golf Condominiums, 310 S.C. 473, 427 S.E.2d 646 (1993) (). After establishment of the regime, the newly created individual apartments and appurtenant common and limited elements continue to be owned by the declarant until such time as he conveys his interest in the apartments. 2 See 31 C.J.S. Estates § 148 (Supp.1994). In other words, those claiming an interest in regime property must acquire it through the declarant or his successors in interest. Id.
Because a condominium is a creature of statute, 4 S.C.Juris. Condominiums § 5 (1991); Clampit v. Cambridge Phase II Corp., 884 S.W.2d 340 (Mo.App.E.D.1994); Suntide Condominium Ass'n, Inc. v. Div. of Florida Land Sales and Condominiums, 463 So.2d 314 (Fla.App. 1 Dist.1984), strict compliance with the Horizontal Property Act is required to create a horizontal property regime. Battery Homeowners Ass'n v. Lincoln Fin. Resources, Inc., 309 S.C. 247, 422 S.E.2d 93 (1992); Prestwick Landowner's Ass'n v. Underhill, 69 Ohio App.2d 45, 429 N.E.2d 1191 (1980) (); Hall Manor Owner's Ass'n v. City of West Haven, 212 Conn. 147, 561 A.2d 1373 (1989) (); see also 15A Am.Jur.2d. Condominiums § 12 (1976). In Battery, homeowners bought their property subject to a Declaration of Covenants, Conditions and Restrictions. The Master Deed did not contain the words "Horizontal Property Regime" as required by the Horizontal Property Act. Our Supreme Court held the Act had not been complied with and a regime had not been created.
As stated in S.C.Code Ann. § 27-31-30, a prerequisite to the establishment of a regime is the recording of a master deed "which shall set forth the particulars enumerated in S.C.Code Ann. § 27-31-100." Section 27-31-100(g) (Rev.1991) requires, that in the event the developer proposes to develop the property in phases, the master deed shall contain certain additional information, to include, the maximum number of units in each future phase, the date the developer will elect whether he will proceed with each phase, and a general description of future common elements to be annexed to the property described in the master deed. Section 27-31-110 (Rev.1991) requires that a plot plan and building plans showing improvements and common elements be attached to the master deed.
The Master Deed and allied documents in the case sub judice do not comply with these provisions as to the 30.93 acres in question. The question then presented is the effect of the failure to comply with the statute. Contrary to Blackston's argument, the Homeowner's Association asserts that because the description in the Master Deed refers to a boundary survey of the entire 43.75 acre tract, the whole tract has been submitted to a condominium form of ownership and the 30.93 acres have become common elements to Phase One under condominium law and the definition of common elements found in Appendix One to the Master Deed.
The rules applicable to the construction of contracts are applicable to the construction of covenants in deeds. 17 S.C.Juris.Covenants § 69 (1993). However, covenants that restrict the free use of property must be strictly construed against limitations upon the property's free use. Hyer v. McRee, 306 S.C. 210, 410 S.E.2d 604 (Ct.App.1991). Where there is doubt, the doubt must be resolved in favor of the property's free use. Id. As voluntary contracts, however, restrictive covenants will be enforced according to their terms unless they are indefinite or contravene public policy. 17 S.C.Juris.Covenants § 100 (1993) (citing Sea Pines Plantation Co. v. Wells, 294 S.C. 266, 363 S.E.2d 891 (1987)).
We have reviewed the Master Deed and allied documents and find a serious indefiniteness as to what portion of the 43.75 acre tract the developer intended to submit to the regime. In Section II of the Master Deed, while the property subject to the regime is described as that contained in Exhibit A, 3 the document also states "[b]y appropriate amendment the property subject to this declaration may be expanded by constructing 214 additional residences 4 and common elements thereon." Section IV(A) is captioned The Present Condominium (Phase One). Section IV(A)(2) states "the common areas and limited common areas and facilities of the condominium include ..." a number of improvements, to wit the swimming pool, tennis courts, etc., and "(e) the other common areas shown on Phase One Site Plan and subsequent plans and future such buildings being so indicated in amendments to this Declaration." Further, it provides " 'common area' is also defined in Appendix One which is attached hereto and incorporated by reference herein." Section IV(B) is captioned Developer's Permitted Additions to the Condominium. Section IV(B) states that the property includes not only the 64 units in Phase One and its common areas, but shall also include five additional phases and their common areas, the plans of which "are set forth in Appendix Two, attached hereto...." Appendix Two refers to requirements for insurance coverage, but is not otherwise helpful in this inquiry. Section V entitled Plot Plan, Floor Plans, and Amendments Thereto refers only to Phase One.
It is apparent from a reading of the Master Deed, its allied documents and the construction loan agreement that the developer intended to develop the 43.75 acre tract in six phases. To accomplish this, the developer was required to comply with all pertinent provisions of § 27-31-100. Unquestionably, the Master Deed fails to comply with several requirements of § 27-31-100 as relates to the 30.93 acres. Only the 12.83 acre tract complies with § 27-31-100(b) and (c). Additionally, in order for the 30.93 acres to constitute future phases of the condominium, the...
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