Trost v. Sea Mark Tower Prop. Owners Ass'n

• Decision Date: 29 April 2004
• Docket Number: 2004-UP-284
• Parties: Randall J. Trost, Respondent, v. Sea Mark Tower Property Owners Association, Inc., and The Noble Company of Myrtle Beach, Defendants, Of Whom Sea Mark Tower Property Owners Association, Inc., is Appellant.
• Court: South Carolina Court of Appeals

Randall J. Trost, Respondent, v. Sea Mark Tower Property Owners Association, Inc., and The Noble Company of Myrtle Beach, Defendants, Of Whom Sea Mark Tower Property Owners Association, Inc., is Appellant.

No. 2004-UP-284

Court of Appeals of South Carolina

April 29, 2004

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted April 6, 2004.

Appeal From Horry County J. Stanton Cross, Jr., Circuit Court Judge.

Henrietta U. Golding, of Myrtle Beach, for Appellant.

Randall J. Trost, of Lynchburg, Virginia, for Respondent.

PER CURIAM

Sea Mark Tower Property Owners Association, Inc. (Association”) appeals the Master-in-Equity's decision ordering it to reinstall the awnings over the balconies of the penthouse units in the Sea Mark Tower Horizontal Property Regime (Regime”). We affirm.

FACTS

The Regime was established in December of 1994 and Sea Mark Tower was built in 1985. At the time of building construction awnings were installed over the balconies of the two penthouse units.

There have been numerous problems with water intrusion into the building for years. In 1998, the Association hired Law Engineering and Environmental Securities, Inc. to assess the building's structural integrity and identify the reasons for water leakage problems with the building. Although the Law Engineering reports revealed water leakage problems from roofs, windows, and the stucco, they did not state that the penthouse awnings were sources of any water leakage.

Upon receiving the Law Engineering reports, the Association hired Glasstec, a waterproofing company, to correct the water leakage problems. In order to waterproof the walls and floors of the penthouse balconies, Glasstec removed the awnings and awning structures. Glasstec refused to provide a warranty on its work if the awning structures were replaced through its waterproofing. Randall Trost, the owner of penthouse unit 1201 demanded the awning be replaced. The Board offered to restore the awnings, but only if Trost took responsibility for any subsequent leakage. Trost refused. The awnings have not been restored to their original position.

Trost filed this action against the Association seeking an injunction requiring the Association to replace the awning structures on the balconies and refrain from interfering with the awnings in the future. The master determined the penthouse awnings were limited common elements and their removal by the Association was an ultra vires act. The master ordered the Association to pay for all expenses and damages from the awnings' removal and to pay for their reinstallation. This appeal followed.

STANDARD OF REVIEW

Actions for injunctive relief are equitable in nature. Godfrey v Heller, 311 S.C. 516, 517, 429 S.E.2d 859, 860 (Ct. App. 1993). On appeal, in an action in equity, tried by a master alone, this court may find facts in accordance with its views of the preponderance of the evidence. Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1989); Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). This broad scope of review, however, does not require this court to disregard the findings of the master, who saw and heard the witnesses and was in a better position to evaluate their credibility. Tiger, 301 S.C. at 237, 391 S.E.2d at 543.

LAW/ANALYSIS

I. Limited Common Elements Designation

Appellant argues the master erred in finding the penthouse awnings are limited common elements. We disagree.

The master deed of a horizontal property regime should be strictly enforced. Kneale v. Bonds, 317 S.C. 262, 267, 452 S.E.2d 840, 842 (Ct. App. 1994). Under the Regime's master deed, the Regime consists of units, general common elements, and limited common elements. The master deed defines each unit as the interior cubic space, fixtures, appliances, furnishings, walls, floors, ceilings, and building material enclosed within” the unfinished surface of the structural slab of the ceiling and floor and the unfinished interior surface of the perimeter walls, except for load bearing walls, which are common elements. The unit also includes all appurtenances which are integral and exclusive to the Unit, including but not limited to lamps attached to the exterior of the Unit...”

The master deed does not include such a detailed description of what constitutes a limited common element. According to the Horizontal Property Act, limited common elements are those common elements which are agreed upon by all the co-owners to be reserved for the use of a certain number of apartments to the exclusion of the other apartments...” S.C. Code Ann. § 27-31-20(g) (1991). Although the master deed does not include a definition of limited common elements, Exhibit B of the master deed provides that the balcony or balconies adjacent to each unit, including the railing adjacent to the same, is a limited common area and is subject to the restrictions and requirements as are set out elsewhere in this master deed.”

We find a strict construction of the master deed supports the master's ruling the awnings are limited common elements. There is no language in the deed to support the Association's contention that the awning is part of the unit. The deed confines the unit to the area within the four walls, ceiling and floor, with the exception of the specifically mentioned exterior lamp. In contrast, the deed does provide support for Trost's assertion that the awnings are limited common elements by providing the balconies are limited common elements. It can hardly be said that the balconies are limited common elements, yet the awnings that hang over them are not.

In addition, the testimony presented during trial supports the master's conclusion that the awnings are limited common elements. Sandy Kelly, the president of the Association testified that in 1999 the Association's Board of Directors had concluded the awnings were common elements of the Regime. Three witnesses involved in the development, design, and construction of Sea Mark Tower also confirmed the awnings were limited common elements. Kit Christopher, Sea Mark Tower's developer and original owner of unit 1201 testified the awnings were intended to be an architectural feature” of the building. George Howell, designer of Sea Mark Tower, testified the awnings were included as part of the original design on construction drawings for the building, and were intended to enhance the overall appearance and attractiveness of the building. Tom Roe, also an original developer of Sea Mark Tower, Roe testified it was the intent of developers that the awnings be common elements or limited common elements when they were installed. He declared, I signed the Master Deed. I was on the original Board. I've served as Treasurer and President. And there was never any question in my mind... about the nature of those awnings.”

Based on the above, we find the master properly concluded the penthouse awnings were limited...