A Scottish Legend and an Open Question When Can Sc Landowners Amend "10-year" Restrictive Covenants?

Publication year2021
A Scottish Legend and an Open Question When Can SC Landowners Amend "10-Year" Restrictive Covenants?
Vol. 33 Issue 1 Pg. 26
South Carolina Bar Journal
July, 2021

By Phillips Workman


According to myth, there lies in the Scottish Highlands a village untouched by reality or time. Immortalized by the 1940s Broadway musical and later Gene Kelly film of the same name, this is Brigadoon-an enchanted place that appears from the mist and becomes visible and visitable by outsiders for just one day every 100 years. After those 24 hours, it fades away-inaccessible until the next centenary.

Here in a different kind of highlands-the Upstate-I recently came across a real estate issue that had me immediately recalling Brigadoon. The issue dealt with boilerplate amendment language in a recorded set of covenants, conditions and restrictions (CCRs). I imagine most all of us in the dirt law world have seen some variation of the template language below when reviewing CCRs (and I've underlined the key phrase):

These covenants are to run with the land and shall be binding on all of said parties and all parties claiming under them until January 1st, 1975, at which time said covenants shall be automatically extended for successive periods of ten years o unless by a vote of the majority of the then owners of said lots as shown on said map and it is agreed thereby to change said covenant in whole or in part.

At first glance, there does not appear

to be anything puzzling about the language. The covenants continue until a fixed date and then auto-renew for 10-year intervals until amended. What does this have to do with the old Scottish tale?

The question posed in this article arose when researching exactly when parties to CCRs (either the original landowners or successors to title) can effectively amend these documents. In courts across the country, there have emerged two opposing positions: (1) that the 10-year period is only a placeholder with no discernible import, and any amendment by the landowners is effective immediately upon execution, and (2) that the language restricts amendments to become effective only when the next 10-year interval emerges from the fog. Under the second interpretation, for example, if the parties to CCRs execute an amendment on March 31, 2021, but the next 10-year anniversary of the covenants is January 1, 2030, then the amendment does not become effective until the 2030 anniversary.

Clearly, the second interpretation throws a major monkey wrench in landowners' plans if they wish to amend covenants to facilitate a development, a sale, or a new permitted use. Hoping to find a quick and clear answer, I set out for the font of all knowledge—Westlaw.

To my chagrin, and as is all too often the result, there was scant South Carolina material on the subject. As far as I can tell, this would be a case of first impression in South Carolina. But the question still remains—surveying similar cases from other states, what would be the most likely outcome in litigation surrounding 10-year covenants here in the Palmetto State? And what can we learn from other states' outcomes and apply that knowledge to how we approach and draft CCRs in our practices?

The Brigadoonites: Western approach

Funny enough, we have to travel to what has to be the most opposite place in the world from Scotland-the plains and deserts of the American West-to find the most...

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