Midsouth Golf, LLC v. Fairfield Harbourside Condominium Association, Inc.

652 S.E.2d 378 (2007)

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Nature of the Case

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Facts

Fairfield Harbour, Inc. (FHI) recorded a set of restrictive covenants. The Master Declaration governs the property development known as Fairfield Harbour and applies to all properties within Fairfield Harbour, including each subdivided lot therein, each unit in a tract of land for condominium or unit ownership of property, and to such other divisions of land or interests therein, including interval ownership interests. FHI had the power to levy an annual charge for the reasonable and proper operation, maintenance, repair and upkeep of all recreational amenities owned by FHI. Each owner of property had to become a member of the Property Owners Association. FHI is responsible for maintaining the recreational areas, and the Property Owners Association is responsible for parks and common areas. An easement for the use and enjoyment of each of the areas designated as parks was also reserved to FHI, its successors and assigns; to the persons who are from time to time members or associate members of the [Association]; to the members and owners of any recreational facility; to the residents, tenants and occupants of any multi-family residential building, guest house, inn or hotel facility, and all other kinds of residential structures that may be erected within the boundaries of Fairfield Harbour; and to the invitees of all of the aforementioned persons, the use of which shall be subject to such rules and regulations as may be prescribed by FHI or the Association, if the Association is the owner of the facility or property involved. FHI had ownership of all of the recreational amenities within Fairfield Harbour. FHI created D, a timeshare community. FHI recorded restrictive covenants for each timeshare community and incorporated the covenant to pay amenity fees in the Master Declaration. FHI eventually sold its ownership in the recreational amenities to Harbour Recreation Club in 1993. FHI and HRC agreed to a set of additional restrictive covenants that allowed the owner of the recreational amenities to collect amenity fees from timeshare units at a rate of up to 5.556 times the fees collected from individual lot owners. D disputed the fees and D and HRC made a settlement agreement. HRC then sold to P but did not reference the 1998 settlement but did reference the Master Declaration and the 1993 covenants. P sued D alleging it was entitled to collect amenity fees at the rate of up to 5.556 times the fees collected from individual lot owners, as set forth in the 1993 covenants. Ds alleged that the covenants were personal and were not binding. The trial court granted partial summary judgment to D and P appealed.