4.01 Use Restrictions
Library | South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.) |
4.01 Use Restrictions
A. Generally
Ownership in a condominium may be subject to deed restrictions and covenants just as any other real property.1 In general, apartment owners will be bound by the restrictive covenants in the master deed or bylaws.2 Restrictions on the use of apartments are essential to condominium living but also a source of its greatest conflicts. Troublesome though the restrictions can be, courts have been clear in their opinion. A home may be a castle, and the owner lord, but the sovereign fiat to use property as one wishes must yield when ownership is in common.3 The unique nature of condominium ownership requires restrictions on individual rights that might not be tolerated in more traditional forms of property ownership.4
... inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in a separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to the use of condominium property than may be existent outside the condominium organization.5
The enforceability of use restrictions may be affected by the document that contains them. Those set out in a declaration or master deed are said to be clothed with a very strong presumption of validity,6 to be "very much in the nature of covenants running with the land" so that they will not be invalidated absent a showing they are wholly arbitrary in their application, in violation of public policy, or abrogate some fundamental constitutional right.7 The principle underlying this proposition is that restrictions in master deeds or declarations predate the purchase of the apartment.8 Additionally, it is argued that like deeds containing restrictive covenants, the master deed is recorded,9 providing notice.10
Unrecorded restrictions found in bylaws or "house rules" however, will likely be treated differently.11 It has been said that the association is not "... at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners."12 Thus, rules adopted by a council of co-owners are generally required to be reasonable, not arbitrary and capricious.13 A different standard may apply where condominium documents grant the council authority to exercise discretion. Courts have applied various, but similar formulas, to evaluate the association's discretion:
(1) the discretion must be applied reasonably or in good faith;14
(2) a use must be allowed unless it is ".demonstrably antagonistic to the legitimate objectives of the association, i.e., the health, happiness and peace of mind of the individual unit owners;"15
(3) instead of applying an unwritten rule, the discretion delegated must actually be exercised;16 and,
(4) a governing board cannot effectively amend the master deed by adopting a board resolution or house rule.17
(5) when a governing board is granted the power to adopt and amend reasonable rules for the health, comfort, safety, and welfare of the residents, the board is not required to create rules regarding safety of residents.18
Other standards applied to condominium use restrictions are ones commonly employed in the review of statutes or restrictive covenants on real property generally.19
The South Carolina Court of Appeals has said in regard to a master deed restriction that covenants restricting free use of property must be strictly construed against limitations on free use of property.20 No restriction may be applied selectively against some owners and not others.21 Associations have been forbidden from applying restrictions retroactively. A covenant must not be enlarged or extended by construction or implication beyond the clear meaning of its terms.22 When the governing board of a council of co-owners interprets the documents, courts generally give that interpretation considerable deference unless it is arbitrary and unreasonable.23
B. Selective Enforcement, Waiver, and Laches
Associations have been successful in defending against allegations of selective enforcement if their past decisions were documented,24 as well as in instances where unit owners assumed control after a developer has failed to enforce restrictions.25 A board may approve requests, and upon discovering problems with the results, disapprove subsequent similar requests.26 Selective enforcement is difficult to prove. The burden of proof will ordinarily be on the unit owner and courts can be expected to require specific evidence of selective enforcement.27
In general, waiver of the right to object to a minor violation of a covenant will not result in waiver of the right to object to a subsequent, more substantial violation.28 If an association has previously failed to enforce a restriction, but on receiving a complaint, takes action to enforce the restrictive covenant, there is no waiver by the association of its right to enforce the restriction.29 Sometimes there is a policy under which the council of co-owners will not enforce a rule until an actual complaint is received. One charged with a rule violation might, therefore, contend the rule has not been previously enforced. The council could respond that it had never received any complaints, even though individual board members might be aware of violations. In one case, an unwritten policy requiring complaints before enforcement action, avoided what amounted to a waiver defense.30
One South Carolina case involving the issue of waiver is Arcadian Shores Single Family Homeowners Ass'n v. Cromer,31 a case concerning a residential subdivision, not a condominium. The declaration in Arcadian Shores provided that fences could not be constructed without the plans and specifications first being submitted for written approval. A property owner submitted plans and specifications to the association for a three-foot high masonry lattice wall in her front yard. The association approved the plans, but the owner built a three-foot high solid stucco wall instead. The association brought an action for an injunction requiring removal of the fence. There was testimony revealing that some owners had not submitted plans or specifications for certain projects to the association and that it inconsistently enforced the requirement. The court observed that pictures of property throughout the neighborhood showed an absence of any scheme for fencing or other structures and commented that extensive omissions or variations tend to show no scheme exists. Additionally, the association president testified that the governing board didn't object to the fence and it would have granted a "variance" for it had one been submitted. The court held the evidence supported the conclusion that the association waived its right to approve plans and specifications for the fence.
Laches is an equitable doctrine applied to a litigant who negligently fails to act for an unreasonable length of time. It did not apply to an action to enforce a rear yard setback restriction where the plaintiffs informed the defendant of their intent to sue before any construction began and repeatedly attempted to contact various governmental agencies to determine their rights.32
C. Retroactive Application
The meaning of "retroactive" in the condominium context has been somewhat unclear. In Winston Towers 200 Ass'n, Inc. v. Saverio,33 for example, the association amended a bylaw in February of 1974. The amendment provided that all pets, including any acquired as replacements of prior ones, that were not registered as of a date one year earlier could not be kept. Mr. Saverio's dog gave birth over a year after passage of the amendment. The puppy would have to go, said association, because the registration date had long passed. The court concluded otherwise. The amendment, it decided, imposed a retroactive regulation and was therefore void and unenforceable. It should be noted that even a prospective amendment, one that would have allowed pets registered on the date of the amendment's passage, would have precluded Mr. Saverio from keeping his puppy. In actuality the rule would have had retroactive effect if an owner had registered a dog between February, 1973 and February, 1974. It appears the Saverio court struck down the rule because it was facially retroactive rather that retroactive as applied.
A more apparent example of retroactive application was addressed in Constellation Condominium Ass'n, Inc. v. Harrington.34 A rule prohibited permanent residence by children. It was amended to clarify its intent. The original rule and the amendment were recorded. The Harrington's had a child who occupied the residence and was born prior to the rule amendment. The court found the amended rule could not be applied to the Harringtons as it would constitute retroactive regulation.35 Notwithstanding cases that have invalidated retroactive restrictions, there is also authority that where the condominium documents provide a means of amendment, the owner is on notice that he or she is subject to new restrictions on use. That notice renders such amendments valid as applied to those purchasing units before the amendment.36 The argument is probably most likely to succeed where a restriction appears in recorded documents since these carry the imprimatur of official notice.
The Florida Supreme strongly supported retroactive application of amendments in Woodside Village Condominium Ass'n, Inc., v. Jahren37 It said owners "were on notice that the unique form of ownership they acquired when they purchased their units . was subject to change through the amendment process, and that they would be bound by properly adopted amendments."38 The Florida court agreed with an Illinois decision holding that...
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