Kneale v. Bonds, 2280

• Decision Date: 09 February 1995
• Docket Number: No. 2280,2280
• Parties: Anita W. KNEALE, Elizabeth W. Dillard, Charles R. Nairn, Martha E. Nairn, William A. Kinney, M. Violette Kinney, J. Ronald Sanders, Jacqueline Watson, Vic Meade, M. Katherine Meade, E.L. Gibson, and Roy Duffey, of whom Anita W. Kneale, Charles R. Nairn, Martha E. Nairn, William A. Kinney, M. Violette Kinney, J. Ronald Sanders, Jacqueline Watson, Vic Meade, M. Katherine Meade, E.L. Gibson, and Roy Duffey are Appellants/Respondents, v. Henry Earl BONDS and Janet Bonds, Respondents/Appellants.
• Court: South Carolina Court of Appeals

Page 840

452 S.E.2d 840

317 S.C. 262

Anita W. KNEALE, Elizabeth W. Dillard, Charles R. Nairn,

Martha E. Nairn, William A. Kinney, M. Violette Kinney, J.

Ronald Sanders, Jacqueline Watson, Vic Meade, M. Katherine

Meade, E.L. Gibson, and Roy Duffey, of whom Anita W. Kneale,

Charles R. Nairn, Martha E. Nairn, William A. Kinney, M.

Violette Kinney, J. Ronald Sanders, Jacqueline Watson, Vic

Meade, M. Katherine Meade, E.L. Gibson, and Roy Duffey are Appellants/Respondents, v. Henry Earl BONDS and Janet Bonds, Respondents/Appellants.

No. 2280.

Court of Appeals of South Carolina.

Submitted Nov. 1, 1994.

Decided Dec. 12, 1994.

Rehearing Denied Feb. 9, 1995.

J. Cordell Maddox, Jr., of Glenn, Haigler & Maddox; and Oren O. Jones, of Jones, Spitz, Moorhead, Baird & Hermeston, Anderson, for appellants-respondents.

J. Calhoun Pruitt, Jr., of Pruitt & Pruitt, Anderson, for respondents-appellants.

CURETON, Judge:

This suit in equity was instituted by several property owners (property owners) within the Anchor Point Horizontal Property Regime against Henry Earl Bonds and Janet Bonds, also owners of a condo unit within Anchor Point, seeking a mandatory injunction restraining the Bonds from proceeding with the erection of a 2,200 square foot addition to their condominium unit being built over a portion of the general common elements of Anchor Point. Alleging that the property owners had also encroached upon the general common and limited common elements, the Bonds claimed the property owners were estopped from seeking the relief they requested, and by way of counterclaim sought the removal of improvements erected by them. ¹ The trial court held the Bonds commenced their construction in good faith and with the approval of the Board of Directors which had apparent authority to approve such improvements. The court further held the defense of laches was applicable to the Bonds' counterclaim, and denied both parties' requests for injunction. Both parties appeal. We affirm in part, reverse in part and remand.

An action to enforce restrictive covenants by injunction is in equity. Holling v. Margiotta, 231 S.C. 676, 100 S.E.2d 397 (1957); Gibbs v. Kimbrell, --- S.C. ----, 428 S.E.2d 725 (Ct.App.1993). On appeal of an equitable action tried by a master, this court has authority to find facts in accordance with our own view of the preponderance of the evidence. Id.

The Bonds purchased Unit 28 at Anchor Point on May 31, 1991. On June 5, 1991, the Bonds applied for permission to build an addition to their condominium which would extend onto the common elements of Anchor Point. Their application was approved by the Anchor Point Board of Directors. The Bonds thereafter commenced construction October 29, 1991. The property owners sought to prevent construction, obtaining first a temporary restraining order on November 6, 1991, and subsequently a temporary injunction on November 14, 1991. The property owners then sought a mandatory injunction for the removal of the improvements built by the Bonds. The Bonds likewise sought an injunction against several of the property owners for the removal of previously constructed alterations and additions.

The provisions of the Master Deed establishing Anchor Point (formerly The Shoals 1 Horizontal Property Regime) require authorization from the Board of Directors and a majority of the unit co-owners for any alterations or additions to the common elements. ² Despite this provision, the practice of Anchor Point since its founding in 1973 was to require only approval by the Board for alterations and additions. The Board of four directors is elected annually by a majority vote of the co-owners.

The various additions and alterations previously approved, a number of which were for the benefit of certain of the property owners, ³ are not as extensive as the Bonds' additions, which include approximately 1,300 square feet of covered space and approximately 800 square feet for a concrete pad for parking. The Bonds would apparently also require greater use of additional common areas for access to their parking area.

The trial court, nonetheless, found that all of the alterations or improvements made by the Bonds were with express or implied permission of the Board. The court also found that the Board has great discretion under Article XV in approving alterations and additions, and that no one has ever sought majority approval of the co-owners. The court concluded the Board received, under Article XV, apparent authority to approve such alterations and additions.

The court proceeded to balance the equities, in considering whether to grant a mandatory injunction for the removal of the Bonds' additions, and determined under Janasik v. Fairway Oaks Villas Horizontal Property Regime, 307 S.C. 339, 415 S.E.2d 384 (1992), that principles of equitable estoppel should apply. The court determined laches should apply with respect to the Bonds' counterclaim for removal of the additions previously constructed by the property owners. Finally, the court refused both parties' requests for a mandatory injunction and dissolved the previously issued temporary injunction.

On appeal, the property owners argue the court erred in denying their request for a mandatory injunction because it is the appropriate relief under the Master Deed and the S.C. Horizontal Property Act, and the balance of equities favor them. They further maintain the court should have strictly construed the Master Deed pursuant to the requirements of the Horizontal Property Act which provides that the Master Deed shall be strictly enforced. We agree with the property owners that the additions and alterations in question were approved contrary to the specific provisions of the Master Deed requiring approval of a majority of the homeowners.

Anchor Point is a horizontal property regime subject to the Horizontal Property Act. See S.C.Code Ann. § 27-31-10 et seq. (1991). Horizontal property regimes are administered by By-Laws inserted in or appended to the Master Deed. See S.C.Code Ann. § 27-31-150 (1991); Ortega v. Kingfisher Homeowners Association, Inc., --- S.C. ----, 442 S.E.2d 202 (Ct.App.1994). Both the By-Laws for Anchor Point and the Horizontal Property Act provide that the Master Deed should be strictly enforced. ⁴ A strict construction of the Master Deed and the provisions of the Horizontal Property Act prevent additions of the type built by the Bonds because the Bonds' structure violates provisions of the Master Deed and the Horizontal Property Act.

The right to enforce a restrictive covenant is not limited to mere preventive action, but will, in the proper case, extend to requiring a defendant, by mandatory injunction, to repair any injury already done, or to remove a structure already erected. Hunnicut v. Rickenbacker, 268 S.C. 511, 515, 234 S.E.2d 887, 889 (1977). The issuance of an injunction depends upon the equities between the parties and if great injury will be done to the Bonds with little benefit to the other property owners, it is proper for the trial court to deny equitable relief.

In the present case, the Bonds' addition was stopped in its initial phase and would require a minimal expense to remove given its current incomplete condition. On the other hand, the other property owners testified that the common area at issue was once a large, flat...