Interpreting and Enforcing Restrictive Covenants
Two owners, members of the Big Bass Lake Community Association, erected a landscaping wall that interfered with the Association’s utility easement and right-of-way. Big Bass
All Association owners were bound to restrictive covenants. One of them allowed the Association to install utility fixtures and lines on an owner’s property. Another covenant guaranteed the owners the right to use Association roads. The defendants erected a stone planter wall within the Association’s right-of-way, about three feet from the paved road. The Association’s utility easement extended ten feet onto defendants’ property. The owners claimed, however, that the covenants were silent about owners making improvements to the Association’s right-of-way or easement. The defendants’ surveyor also testified that other property within the Association encroached on the right-of-way. Moreover, the contractor who built the wall testified that it was easily removable. The trial court, nevertheless, issued a permanent injunction.
An injunction, as opposed to damages, is appropriate,where real property rights are involved, such as covenants and easements. However, the breach of covenant may be very clear. The court on appeal did not find a strong showing that the covenants had been breached and that a mandatory injunction was appropriate. The right-of-way just gave rights to use the road, but did not impose any burdens. The utility easement did not expressly prohibit landscaping. In addition, there had to be a significant encroachment of the right-of-way to justify injunctive relief. Lastly, the trial court did not show that it was necessary to remove the wall, rather than just push it back or reduce its height.
In the end, the court remanded the case to the lower court to first determine if the request was for a permanent or for a temporary injunction. The record showed part of the conversations with the judge where a temporary, and not permanent, injunction was sought. A temporary injunction hearing cannot be a final or permanent hearing unless the parties agree. Because nothing showed that the parties agreed, the court vacated the permanent injunction order and remanded for further proceedings.
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Posted by Ryan McCabe at 2/9/2009 8:35 AM 
Categories: Homeowners Association, Common-Interest Community Association, Covenant Enforcement, Injunctions
Categories: Homeowners Association, Common-Interest Community Association, Covenant Enforcement, Injunctions
Hello,
My husband and I are Board members for a 3 year old Condo complex that has a number of structural issues - including broken support trusses, water leaks into the elevator mechanical room, and rodents in attics due to imcomplete fascias. We are preparing an extensive right to cure package for the contractor including seven reports from licensed forensic engineers, roofers, etc. Does anyone know of a specific section or act within the South Carolina laws that would be appropriate to include in our packet that is a bit "stronger" than Section 27-31-160 segment (C) of the SC Code of Laws of the Horizontal Property Act? Thank you.
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Consult SC Code 40-11-500 et seq and/or SC Code 40-59-810 et seq. These statutes provide the law on a contractor's right to cure.
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