In re T 2 Green, LLC, Bankruptcy No. 05-05781-W.

• Decision Date: 28 February 2006
• Docket Number: Bankruptcy No. 05-05781-W.,Adversary No. 05-80154-W.
• Citation: 363 B.R. 753
• Court: U.S. Bankruptcy Court — District of South Carolina
• Parties: In re T 2 GREEN, LLC, d/b/a King's Grant Golf Course, Debtor. T 2 Green, LLC, Plaintiff, v. J.L. Abercrombie, et al., Defendants.

363 B.R. 753

In re T 2 GREEN, LLC, d/b/a King's Grant Golf Course, Debtor.

T 2 Green, LLC, Plaintiff, v. J.L. Abercrombie, et al., Defendants.

Bankruptcy No. 05-05781-W.

Adversary No. 05-80154-W.

United States Bankruptcy Court, D. South Carolina.

February 28, 2006.

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Mark W. McKnight, Charleston, SC, for Plaintiff.

Charles Pelot Summerall, IV, Buist, Moore, Smythe & McGee, PA, Charleston, SC, Richard R. Gleissner, Columbia, SC, for Defendants.

JUDGMENT

JOHN E. WAITES, Bankruptcy Judge.

Based upon the Findings of Fact and Conclusions of Law as recited in the attached Order of the Court, Defendants' Motion for Summary Judgment is granted in part in so much as this Court holds that the use of some portion of Debtor's property is restricted. The remaining issues raised in Defendants' Motion for Summary Judgment and Debtor's Motion for Summary Judgment, as addressed in the attached Order, involve genuine issues of material fact and therefore the Court denies summary judgment on all remaining issues.

ORDER GRANTING IN PART, DENYING IN PART, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on cross motions for summary judgment filed by T 2 Green, LLC ("Debtor") and J.L. Abercrombie, et al., ("Defendants"). This Court has jurisdiction over this proceeding pursuant to 28 U.S.C.A. §§ 1334(a) and (b), and 157(a) and (b). This adversary proceeding is a core proceeding. 28 U.S.C.A. § 157(b)(2)(A), (M), and (0). Venue of this adversary proceeding is proper in this Court in the District of South Carolina pursuant to 28 U.S.C.A. § 1409(a). Pursuant to Rule 52 of the Federal Rules of Civil Procedure, made applicable to this proceeding by Fed. R. Bankr.P. 7052, the Court makes the following Findings of Fact and Conclusions of Law.¹

FINDINGS OF FACT

1. King's Grant on the Ashley is a residential subdivision (the "Subdivision") in Dorchester County, South Carolina. The individual Defendants are property owners within the Subdivision and members of the homeowner's association ("HOA").

2. The Subdivision is located on a portion of a tract of land formerly owned and developed by the Ervin Company, a Delaware corporation ("Developer"). The entire tract of land is subject to certain declarations of restrictions, described hereinafter.

3. On another portion of this tract, the Developer built various recreational amenities (for purposes of this Order, this portion of the tract will be referred to as the "Property"),² including a golf course, fairways, club house, swimming pool, and tennis courts ("Club Amenities"),³ which are described in the declarations of restrictions.

4. Debtor owns the portion of the tract upon which the Club Amenities are situated.

5. On September 24, 1970, the Developer executed both the First 1970 Declaration and the Second 1970 Declaration. The First and Second 1970 Declarations (the "1970 Declarations") were duly recorded in Dorchester County and constitute an agreement between the Developer, and its successors and assigns, and any and all purchasers acquiring any of the residential lots described therein and located in Section One of the Subdivision.

6. The 1970 Declarations describe the Developer's agreement to establish a general plan of development for the protection of the property and future owners and restrict the use of the property.

7. The 1970 Declarations provide that the restrictions are to be construed as restrictive covenants running with the title to the described property which inure to the benefit of, and be binding upon, the heirs, successors and assigns of the acquiring parties and persons.

8. Section I of the 1970 Declarations, entitled "Restrictions," contains restrictions pertaining to the residential lots in Section One of the Subdivision. Developer reserved the right to restrict other property within the tract of land to residential use.

9. Section II, entitled "Maintenance Assessment," describes an annual assessment to provide funds for the maintenance of the common areas of the Subdivision, which are deemed not to include "any golf course, club house, or swimming pool now planned for" the Subdivision.

10. Section III of the 1970 Declarations, entitled "King's Grant. Country Club," contains, in relevant part, the following provisions:

1. Ownership of Country Club.

The ownership of the King's Grant Country Club, including golf course, fairways, club house, swimming pools, tennis courts, and all recreational facilities planned for King's Grant on the Ashley, shall be exclusive in the Developer, and no other person shall, by the recording of the aforementioned plat of King's Grant on the Ashley, or subsequent plats or sections in King's Grant on the Ashley, or by any permissive use, have any proprietary right, title or interest in and to such property. Except as herein expressly provided to the contrary, Developer shall have complete and sole control and authority to manage and operate the King's Grant Country Club properties in such manner as it sees fit, including but not limited to the right to formulate rules and regulations regarding the use thereof.

2. Use and Enjoyment

Each owner of a lot in King's Grant on the Ashley, upon payment of the monthly dues prescribed by Developer shall have the right and privilege to designate one Family Unit to use and enjoy the facilities of the King's Grant Country Club. Such privilege shall be exercisable by only one Family Unit [defined in paragraph 3 of the restrictions] for each lot at any given time, regardless of the number of persons, who shall own an interest in a lot at any given time. The Developer specifically reserves the privilege to invite such other persons to use and enjoy the facilities of King's Grant Country Club as it may choose, and Developer further reserves the right to establish such dues structure for both owners of lots in King's Grant on the Ashley and for such persons as are not owners of lots in King's Grant on the Ashley, as it, the Developer, in its sole discretion, may deem reasonable and necessary.

4. Duration of Privilege

The privilege to use and enjoy the Country Club properties shall run with the title to the lot. Therefore, in the event of the conveyance of a lot to another property owner, the privilege of the former property owner to exercise the privilege of using and enjoying the Country Club properties shall automatically cease and the new property owner shall have such privilege.

5. Suspension of Privileges

Developer shall have the right to suspend the privilege to use and enjoy the Country Club properties in respect to any owner who is delinquent in his dues or for the infraction of Developer's published rules and regulations.

11. Section IV of the 1970 Declarations, entitled "General Provisions", contains, in relevant part, the following provisions:

2. Enforcement.

If any person, firm or corporation shall violate or attempt to violate any of said restrictions, it shall be lawful for any person, firm or corporation owning any of said lots (or having any interest therein) to prosecute any proceeding at law or in equity against the person, firm or corporation violating or attempting to violate the same, and either to prevent him, it or them from doing so or to recover damages or other dues for such violation.

4. Headings and Binding Effect.

Headings are inserted only for convenience and are in no way to be construed as defining, limiting, extending or otherwise modifying or adding to the particular paragraphs to which they refer. The covenants, agreements and rights set forth herein shall be binding upon and inure to the benefit of the respective heirs, executors, successors and assigns of the Developer and all persons claiming by, through or under Developer.

5. Duration.

The foregoing restrictions shall be construed as covenants running with the land and shall be binding and effective until January 1, 1996, at which time they shall automatically be extended for successive periods of ten (10) years each unless it is agreed by the vote of a majority in interest of the then owners of the described property to change, amend, or revoke the restrictions in whole or in part. Every purchaser or subsequent grantee of any interest in any property now or hereafter made subject to this Developer [sic], by acceptance of a deed or other conveyance therefor, agrees that the covenants and restrictions of this Declaration may be extended as provided in this Article.

6. Amendment.

The covenants and restrictions of this Declaration may be amended at any time and from time to time during the period of any extension and renewal thereof, by an agreement signed (a) by Developer, if it is the owner of any lots then subject thereto, and (b) to the extent permitted by law, by at least fifty-one (51%) per cent of the property owners whose lots are then subject thereto, and (c) by the then owners of the Country Club properties and common areas within King's Grant. Any such amendment shall not become effective until the instrument evidencing such change has been filed for record in the Office of the Clerk of Court for Dorchester County, South Carolina. Every purchaser or subsequent grantee of an interest in any property now or hereafter made subject to this Declaration, by acceptance of a deed or other conveyance therefore, agrees that the covenants and restrictions of this Declaration may be amended as provided herein.

7. Delegation and Assignability.

Developer shall at all times and from time to time have the right to delegate any and all functions herein reserved to Developer. Further, notwithstanding any other provision contained herein to the contrary, Developer shall have the right at all times and from time to time to fully transfer, convey and assign all or any part of its right, title and interest under this Declaration, as well as its right, title and interest (whether real or...