Rentals v. The Tara Plantation Homeowners Ass'n Inc.
| Decision Date | 12 July 2010 |
| Citation | 2010 UP 355 |
| Court | South Carolina Court of Appeals |
| Parties | Ben J. Nash d/b/a B&B Rentals, Billy F. Stegall, Jr. and Joseph H. Stegall, Appellants, v. The Tara Plantation Homeowners Association, Inc., Respondent, and The Tara Plantation Homeowners Association, Inc., Respondent, v. William Howarth, Paige Howarth, Shirley Vaillancourt, Courtlandt Stone, J. Carroll Robinson, Connie Robinson, Alan G. Crump, and Patricia D. Crump, Appellants. |
Daniel J. Ballou and Tracy T. Vann, of Rock Hill, for Appellants.
Brian Scott McCoy and Horack Talley, of Rock Hill, for Respondent.
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From York County
S. Jackson Kimball, III, Circuit Court Judge
AFFIRMED
Ben J. Nash, d/b/a B&B Rentals, and the other Appellants appeal the trial court's ruling that restrictive covenants for Tara Plantation subdivision apply to their lots. We affirm.
Bob McLemore (Developer), acting in several corporate names, was the developer of Tara Plantation subdivision near Fort Mill, South Carolina. On February 16, 1988, Developer filed a plat entitled "A Final Plat Showing Maco Commercial Park and Tara Plantation." Notes on the plat provided: "Tara Plantation Lots 1-57 zoned RD-1", which meant residential use, and "Maco Commercial Park Lots A-F zoned BD-1", which meant commercial use. The lots in the Maco Commercial Park (Maco Lots) were at the front of the property owned by Developer on either side of Old Tara Lane. The plat was filed in Plat Book 91 at Page 128 of the York County RMC Office. On February 25, 1988, Developer filed restrictive covenants (Covenants), which provided:
KNOW ALL PERSONS BY THESE PRESENTS, THAT BOB MCLEMORE AND CO., INC., being the owner of the real property located in Fort Mill Township, York County, South Carolina, constituting that certain subdivision known as Tara Plantation, a map of which is recorded in Plat Book 91 at Page 129 of the York County, South Carolina, RMC office, does hereby covenant and agree with all persons, firms or corporations hereafter acquiring any of the lots shown on said map, that said lots shall be subject to the following restrictive covenants, governing the use thereof, which shall run with the property by whomsoever owned.
The Covenants provided: "All lots shown on said map shall be used for residential purposes only." In addition, the Covenants stated: "Nothing herein contained shall be construed as imposing any covenants and restrictions on any property of the owner of this subdivision other than the property to which these restrictive covenants specifically apply." The Covenants do not expressly exclude or include the Maco Lots.
A plat substantially similar to the original plat was filed at Book 95, page 136. Developer, as Bob McLemore Homes (BMH) built a model home on Maco Lot B. Developer sold Maco Lot F to Alan and Patricia Crump on April 10, 1992. Lots B, C, E, and F were rezoned for residential use on June 15, 1992. The remaining lots were rezoned for residential use on April 18, 1994. On April 22, 1994, a plat was filed showing a revision of Lots A, B, C, D, and E of Maco Commercial Park to be known as Lots 61-67 of Tara Plantation. In 1995, Developer as BMH defaulted on the mortgage on Lot B. Home Federal Savings and Loan Association, which acquired title at the foreclosure sale, sold the property to the Mitchells. The current owners, Paige and William Howarth acquired the property after it was foreclosed. Developer filed for bankruptcy in October of 1994. The bankruptcy trustee sold Lots 61-63 (formerly Maco Lots C-D) and Lot 65 (formerly Lot A), while Developer sold the remaining lot in 1996. The Appellants are the current owners of what were the Maco Lots.
Ben J. Nash, Billy F. Stegall, Jr., and Joseph H. Stegall, the current owners of what are now known as Lots 61 and 62 of Tara Plantation, brought this declaratory judgment action against the Tara Plantation Homeowners Association (TPHOA) requesting the court declare their lots unencumbered by the Covenants. The TPHOA asserted a counterclaim against Nash and the Stegalls and a third party claim against the other owners of the former Maco Lots seeking a declaration the lots were subject to the Covenants and seeking collection of homeowner association dues owed by the Appellants.
The trial court ruled the Covenants applied to the disputed lots based on the plain language of the Covenants. In addition, the court held even if an ambiguity exists, Developer intended for the Covenants to apply to all lots on the plat, including the disputed lots. Furthermore, the court ruled Appellants were estopped from asserting the Covenants did not apply to them, waived such contention, and were barred by the doctrine of laches. The court granted the TPHOA judgment against the Appellants for the dues owed. This appeal followed.
A declaratory judgment action is neither legal nor equitable, but is determined by the nature of the underlying issue. Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991). The underlying issue in this case is whether the restrictive covenants can be enforced against the Appellants' lots. An action to enforce restrictive covenants is an action in equity. Buffington v. T.O.E. Enter., 383 S.C. 388, 393, 680 S.E.2d 289, 291 (2009); see alsoHardy v. Aiken, 369 S.C. 160, 165, 631 S.E.2d 539, 541 (2006) (). On appeal from an equitable action, an appellate court may find facts in accordance with its own view of the evidence. Townes Assocs. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). While this standard permits a broad scope of review, an appellate court will not disregard the findings of the trial court, which saw and heard the witnesses and was in a better position to evaluate their credibility. Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1989).
Appellants argue the trial court erred in concluding the Covenants apply to their lots. We disagree.
Restrictive covenants are contractual in nature. Hardy, 369 S.C. at 166, 631 S.E.2d at 542. A restriction on the use of the property must be created in express terms or by plain and unmistakable implication. Id. Restrictions on the use of property will be strictly construed with all doubts resolved in favor of free use of the property; however the rule of strict construction should not be used to defeat the plain and obvious purpose of the restrictive covenants. Taylor v. Lindsey, 332 S.C. 1, 4, 498 S.E.2d 862, 863 (1998). The language of a restrictive covenant is to be construed according to the plain and ordinary meaning attributed to it at the time of execution. Id.
A restrictive covenant is ambiguous when its terms are reasonably susceptible of more than one interpretation. S.C. Dep't of Natural Res. v. Town of McClellanville, 345 S.C. 617, 623, 550 S.E.2d 299, 302 (2001). It is a question of law for the court whether the language of a restrictive covenant is ambiguous. Id. at 623, 550 S.E.2d at 302-03. Once the court decides the language is ambiguous, evidence may be admitted to show the parties' intent. Id. at 623, 550 S.E.2d at 303. The determination of intent is then a question of fact. Id.
When restrictive covenants arise by implication, the restrictions are said to create a reciprocal negative easement. Bomar v. Echols, 270 S.C. 676, 679, 244 S.E.2d 308, 310 (1978).1 Generally, four elements must be established to show a reciprocal negative easement: (1) a common grantor, (2) a designation of land subject to restrictions, (3) a general plan or scheme of restrictions, and (4) the covenants run with the land. Id. In the various grants of the lots, there must have been included some restriction for the benefit of the land retained evidencing a scheme or intent that the entire tract would be similarly treated, so that once the plan has been effectively put into operation, the burden placed upon the land conveyed is by operation of law reciprocally placed upon the land retained. Gambrell v. Schriver, 312 S.C. 354, 358, 440 S.E.2d 393, 395 (Ct. App. 1994). In determining whether a reciprocal negative easement has been created, the court should consider not only the language of the deeds, but also the circumstances surrounding the origin of the covenants. Id. Generally, the developer must establish the general scheme of development before any lots are sold. Id. All doubts regarding the creation of an implied reciprocal negative easement must be resolved in favor of the freedom of land from restriction. Id.
The Covenants state they apply to "any of the lots shown on [the] map" recorded in Plat Book 91, Page 129, which is the plat showing the Tara Plantation Lots, as well as the Maco Lots. The Covenants do not expressly exclude the Maco Lots. However, the Covenants, which provide the lots will be used for residential purposes only, are in conflict with the Plat, which states the Maco Lots are zoned for commercial use.
Developer's brother Danny Charles McLemore, who served as Director of Sales for his brother's company, testified that in developing a subdivision, Developer would have the front of the property zoned commercial and place a model home there. He would then use the model home for sales to the public, would hold real estate days there, and would allow dignitaries to use it for dinners. Once the subdivision was finished, Developer would have the model home rezoned residential and would place the same restrictions on it as the rest of the subdivision. He stated he had ...
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