(South Carolina)

Sometimes courts must revisit and reemphasize legal principles we might think are well settled and go without saying. In Arcadian Shores Single Family Homeowners Association, Inc. v. Cromer, the South Carolina Court of Appeals addresses two such issues that seem to repeatedly arise in both North and South Carolina. Those issues relate to (1) the relationship between board adopted regulations and recorded restrictive covenants and (2) the effect of inconsistent enforcement of improvement approval requirements.

Mrs. Cromer purchased a lot in Arcadian Shores, constructed a 3′ high solid stucco wall and placed her 70′ long motor home behind it. The Association had approved the construction of a 3′ high lattice wall but not the stucco wall. The Association filed a complaint seeking an injunction to prohibit Cromer from parking her motor home at a place where it would be visible from the street and to require the removal of the unapproved fence.

Board regulations cannot be substituted for restrictions.

The parking question was resolved based on an analysis and comparison of documents recorded in 1965 and 1985. Restrictive covenants were recorded in 1965 which prohibited “building outbuilding addition or fencing” unless the plans for such were submitted and approved by the developer. The 1965 restriction also provided that “no mobile home, temporary structure or garage apartment shall be erected on a lot.” Twenty years later in 1985, the Board of Directors adopted regulations specifying acceptable fencing and prohibiting motor homes and travel trailers from being parked where visible from the street. These regulations were also recorded with the register of deeds.

Upon hearing the case, the Master-In-Equity determined that the 1985 document contained regulations not restrictions. The Master held that “any regulation mentioning motor homes, campers or travel trailers necessarily constitutes a change to the original 1965 restrictions and that such a change would require a document signed and acknowledged by the majority of the lots owners.” The Association argued that the 1965 restrictions could be interpreted to prohibit the parking of the motor home in an area visible from the street. The Court of Appeals disagreed and affirmed the Master-In-Equity decision, finding that if the developer intended to prohibit parking of motor homes when it recorded the 1965 restrictions, it would have specifically prohibited such parking.

One more fence was just “fine.”

 The Court addressed the Association’s contention that the Master should have required the Cromers to remove the unapproved fence. The Court of Appeals noted that several individuals testified at trial that they had built structures, including fences, in the Arcadian Shores without submitting plans and receiving approval. Those individuals indicated that the Association did not request or require them to remove those structures or fences or to take any other action. The Court of Appeals further noted that Association’s President testified that he was “fine with the fence.” Based upon the non-enforcement of the plan submission and approval requirements and because the Board President had indicated that the fence was approved orally, the Court found that the Association had waived its right to enforce the restriction.

The points to remember:

The Cromer opinion affirms two longstanding points of law. First, board adopted regulations which are more restrictive than recorded restrictions will not be enforced. The proper course is to amend the restrictions. Second, any Association that consistently fails to enforce a restriction can lose it ability to enforce that restriction in the future, especially when an elected officer verbally approves what might otherwise be a violation.

Please contact Stephen Sellers, Esq. with any questions about this post.