Redevelopment of golf courses might be possible in South Carolina

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In April, this blog discussed the redevelopment of two Horry County golf courses. The North and South courses at Deer Track Golf Resort in Deerfield Plantation have been closed for more than ten years and are finally being redeveloped as residential lots. Adjacent lot owners waged class actions in Horry County seeking to have the use of the properties in question restricted to golf courses or open spaces. While these battles were being waged in court, nature attempted to reclaim the properties. One property owner testified that his views changed from overlooking a manicured golf course to overlooking a “sea of weeds”.

Similar battles have been successful in other parts of the country. The cases are fact intensive and turn on the law of implied easements, which, of course, varies widely from state to state. Plats showing golf courses may provide rights in adjacent lot owners, depending on the recorded documents, the sales program and the law of implied easements in the location.

golf course

I wanted to invite those interested in this area of the law to take a look at an article published in June by www.citylab.com. The article, written by Nolan Gray, is entitled “Dead Golf Courses Are the New NIMBY Battlefield”. In the interest of full disclosure, I had to Google NIMBY. This acronym stands for “not in my back yard”.

The article states that golf is dying, according to many experts. One study cited in Citylab’s article found that the number of regular golfers fell from 30 to 20.9 million between 2002 and 2016. The thinking is that the fall of Tiger Woods may have led to much of this gloom and doom around golfing. But Mr. Gray believes that the bigger story involves the sport’s aging demographics and the fact that millennials are not interested in the expensive, slow sport that provides few health benefits.

Golf courses and golf clubs across the country are closing, leaving the land to be redeveloped. Mr. Gray’s article states that the average 18-hole golf course sits on 150 acres, property that could host around 600 new single-family detached homes. Add to this mix the fact that many golf communities were built in areas with good schools and work opportunities. These properties are, therefore, particularly valuable in areas where housing inventory is a challenge.

So, what prohibits the development of these properties into residential subdivisions? Zoning is one of the challenges. Many golf courses are zoned for commercial uses to accommodate clubhouses, restaurants, pro shops and bars. But the main stumbling block, according to Mr. Gray, is the NIMBY attitude of neighbors. Residents near golf courses prefer that the properties be turned into parks, open spaces and natural preserves.

Let’s look, for example, at the Deerfield Plantation cases. First, the facts: The golf courses and surrounding residential subdivisions were originally developed beginning in the late 1970’s. The plats contained notes to the effect that the streets were dedicated for public use but the golf courses were to be maintained privately and were specifically not dedicated to public use.

The covenants gave the lot owners no rights, property, contractual, or otherwise, in the golf courses. A Property Report that was delivered to all prospective lot purchasers described the costs of golf memberships, which were not included in lot prices, and stated that to be allowed to use the golf courses, members would be required to pay initial dues and annual dues and fees. The real estate agents made it clear during the sales program that the mere purchase of a lot did not give a lot owner any right or entitlement to use the golf courses. The deeds of the lots did not convey any easements or other interests in the golf courses.

One plaintiff, who was also a real estate agent, testified that he was never told the golf courses would operate in perpetuity and that the real estate agents never told other potential purchasers that the golf courses would always exist on the properties.

What caused the golf courses to fail? When the golf courses opened, there were 30 – 40 golf courses in the Myrtle Beach area. By the time the golf courses closed, there were nearly 125 courses. Property taxes in the golf courses increased from $7,800 per year to $90,000 per year.  And then the economy tanked. These three factors have occurred across the country to varying extents.

Now, let’s look at South Carolina law. In one of the cases, a 38-page Order of Thomas J. Wills, Special Referee, examined the law of implied easements in South Carolina. I’m summarizing and eliminating the citations for this brief discussion.

The Order states that implied easements are not favored by the courts in South Carolina and must be strictly construed. The intent of the parties controls the existence and scope of implied easements, and the best evidence of that intent is the recorded documents. While case law in South Carolina is clear that lot owners in subdivisions hold easements in streets shown on plats by which their lots are sold, the order states that this rule does not extend beyond access, which is necessary and expected for residential purposes. Finally, the order states that no implied easements in views, breezes, light or air exist in this state.

Finally, these golf courses will be redeveloped into new residential subdivisions. Will we see more of this litigation in South Carolina?  Probably. While the law in South Carolina appears generally to favor redevelopment in these cases, there is no doubt that the facts in some of the situations may give rise to implied easements in adjacent lot owners, even in the face of our law. As long as we have NIMBY attitudes of those who live near defunct golf courses, we will continue to see litigation in this area.

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Unpublished easement case takes a common sense approach

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Access to Lake Murray must have been intended

Although an unpublished opinion has no precedential value, an easement case* decided by the Court of Appeals on May 16 takes an interesting, common sense approach that may be useful for our analysis of future easement issues.

Hamilton Duncan and Ray and Elizabeth Drasites are owners of two adjacent properties located on an inland cove of Lake Murray. Mr. and Mrs. Drasites’ property abuts the water and is situated between the lake and Mr. Duncan’s one acre parcel. Both parties acquired their respective properties with reference to an easement granting Duncan a right of access over the Drasites’ property to a terminus at the 360 foot contour of Lake Murray.

Lake Murray

Testimony before the Master-in-Equity established that the 360 foot contour is Lake Murray’s high water mark and represents the boundary between the lake, managed by South Carolina Electric and Gas Company (SCE&G), and privately-owned property.

Master-in-Equity Strickland ordered that Duncan has an easement for the purpose of accessing Lake Murray, that Duncan can use the easement to launch small watercraft, and that the Drasites are enjoined from interfering with the easement. The Drasites acknowledged the existence of an easement for a road running generally along the southeastern boundary of their property, but they argued that the length of the easement did not extend to the lake.

The Court of Appeals indicated that common sense and good faith are the leading touchstones in determining the extent of an easement and that consideration must be given to what is essentially necessary to the enjoyment of the dominant property. The Court stated it did not believe it was the grantor’s intent to give the dominant estate a right of access just shy of the lake depending on whether the water level is high or low or for a dirt road traversing the southern boundary of the Drasites’ property but just short of the lake.

The Court held that Duncan is responsible for bearing the cost of maintaining the easement, and any improvements must be subject to the approval of SCE&G. And the Court reminded Duncan that an easement is limited to a use that is reasonably necessary and convenient and as little burdensome to the servient estate as possible. Stated another way, the Court held that the owner of an easement has all the rights incident or necessary to its property enjoyment, but nothing more.

I always prefer a common sense approach. There was apparently little evidence of the extent of the easement since no survey was prepared contemporaneously with it. With the exception of the plats prepared for litigation, all plats in the parties’ chains of title show the easement terminating at the waters of Lake Murray. The Drasites based their argument on a plat outside the chains of title which depicted the road short of the lake. The Court was not impressed with that evidence.

 

* Duncan v. Drasites, Unpublished Opinion No. 2018-UP-211 (May 16,2018)

 

Family squabble leads to promissory estoppel claim

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SC Court of Appeals doesn’t buy it

The facts of a recent Court of Appeals* case involve a dispute between brothers who immigrated from India. Sam Patel moved first, in 1979, and settled in Chicago. Sam’s extended family followed and lived with Sam and his wife. In 1989, Sam moved to Lynchburg, South Carolina, after he purchased a store on Willow Grove Road.

Sam’s family, along with his parents and his younger brother, Kim, followed. The family worked in and lived on the store property. The business grew, and the brothers acquired a store in Sumter. Kim Patel operated the store in Sumter, while Sam Patel continued to operate the store in Lynchburg. Over the years, Sam helped Kim financially.

grocery store country

By 2010, Sam owned three parcels in Lynchburg and operated a liquor store, a grill and a gas station. Sam, himself, faced financial difficulties at this time, and his properties were foreclosed on by First Citizens. At Sam’s request, Kim purchased the properties through the foreclosure in the name of a limited liability company. Sam continued to run businesses on the properties and placed his businesses in the name of another limited liability company.

Sam’s LLC obtained the operating, lottery and alcohol licenses for the properties and made improvements. But Kim’s LLC expended funds for gasoline purchases and property taxes. There was never a lease or written agreement between the brothers or their entities concerning rent and expenses. And when Sam failed to pay rent, Kim’s LLC brought a suit for ejectment and damages. Sam and his LLC counterclaimed, alleging Kim had promised to convey the title to him.

At trial, the brothers gave conflicting accounts of their verbal arrangement. Kim testified that he told Sam he could continue to operate the businesses for six or seven months rent-free so Sam could get back on his feet. After that time frame, Kim expected his brother to pay rent, taxes, insurance and maintenance. Sam testified that Kim purchased the properties in order to convey them back to Sam. Sam intended to repay Kim over three to five years and have title returned to him after repayment.

The special referee’s order stated that Sam owned an equitable interest in the properties and had a right to repurchase them, but that Sam owed Kim approximately $42,000 for expenses.

The Court of Appeals held that Sam’s claim of an equitable interest based on promissory estoppel failed, stating that promissory estoppel is a flexible doctrine that aims to achieve equitable results, but it, like all creatures of equity, has limitations. The court said promissory estoppel is a quasi-contract remedy with four elements:  (1) a promise unambiguous in its terms; (2) reasonable reliance upon the promise; (3) the reliance is expected and foreseeable by the party who makes the promise; and (4) the party to whom the promise is made must sustain injury in reliance on the promise. The court held that Sam’s claim failed on the first two elements.

The testimony of Sam and Kim at trial made it clear, according to the Court, that there was no meeting of the minds as to the terms of the alleged contract. In other words, there was no unambiguous promise to be enforced. And Sam’s reliance was held to be unreasonable in light of the ambiguities of the alleged promise.

The case was remanded to the special referee to conduct the eviction proceeding and to determine rent and expenses between the parties.

 

A&P Enterprises, LLC. v. SP Grocery of Lynchburg, LLC, South Carolina Court of Appeals Opinion 5545 (March 28, 2018).

Despite a decade of litigation by lot owners….

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Two Surfside golf courses are being redeveloped into residential lots

The North and South courses at Deer Track Golf Resort in Deerfield Plantation have been closed for more than ten years and are finally being redeveloped as residential lots. Adjacent lot owners waged class actions in Horry County seeking to have the use of the properties in question restricted to golf courses or open spaces. While these battles were being waged in court, nature attempted to reclaim the properties. One property owner testified that his views changed from overlooking a manicured golf course to overlooking a “sea of weeds”.

Similar battles have been successful in other parts of the country. The cases are fact intensive and turn on the law of implied easements, which, of course, varies widely from state to state. Plats showing golf courses may provide rights in adjacent lot owners, depending on the recorded documents, the sales program and the law of implied easements in the location.

golf course

Let’s look at how the Deerfield Plantation cases were decided. First, the facts:  The golf courses and surrounding residential subdivisions were originally developed beginning in the late 1970’s. The plats contained notes to the effect that the streets were dedicated for public use but the golf courses were to be maintained privately and were specifically not dedicated to public use.

The covenants gave the lot owners no rights, property, contractual, or otherwise, in the golf courses. A Property Report that was delivered to all prospective lot purchasers described the costs of golf memberships, which were not included in lot prices, and stated that to be allowed to use the golf courses, members would be required to pay initial dues and annual dues and fees. The real estate agents made it clear during the sales program that the mere purchase of a lot did not give a lot owner any right or entitlement to use the golf courses. The deeds of the lots did not convey any easements or other interests in the golf courses.

One plaintiff, who was also a real estate agent, testified that he was never told the golf courses would operate in perpetuity and that the real estate agents never told other potential purchasers that the golf courses would always exist on the properties.

What caused the golf courses to fail? When the golf courses opened, there were 30 – 40 golf courses in the Myrtle Beach area. By the time the golf courses closed, there were nearly 125 courses. Property taxes in the golf courses increased from $7,800 per year to $90,000 per year.  And then the economy tanked. These three factors have occurred across the country to varying extents.

Now, let’s look at South Carolina law. In one of the cases, a 38-page Order of Thomas J. Wills, Special Referee, examined the law of implied easements in South Carolina. I’m summarizing and eliminating the citations for this brief discussion.

The Order states that implied easements are not favored by the courts in South Carolina and must be strictly construed. The intent of the parties controls the existence and scope of implied easements, and the best evidence of that intent is the recorded documents. While case law in South Carolina is clear that lot owners in subdivisions hold easements in streets shown on plats by which their lots are sold, the order states that this rule does not extend beyond access, which is necessary and expected for residential purposes. Finally, the order states that no implied easements in views, breezes, light or air exist in this state.

Finally, these golf courses will be redeveloped into new residential subdivisions. Will we see more of this litigation in South Carolina? Probably. While the law in South Carolina appears generally to favor redevelopment in these cases, there is no doubt that the facts in some of the situations may give rise to implied easements in adjacent lot owners, even in the face of our law.

Dirt lawyers: Did you know some County boundary lines in South Carolina are changing?

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For your reading pleasure, here is a repost of an excellent blog (with maps!) by my friend Josh Lonon of The Wyche Firm in Greenville. We will have to pay particular attention as this un-folds. Some of us who have been involved in the practice of real estate law for many years will remember confusion and extra work for title examiners and practitioners when other county boundary lines changed. Thanks, Josh, for the great information!

HOA foreclosures are being challenged on multiple levels in SC

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The HOA won in a recent Court of Appeals case

In January, I blogged about a Federal class action lawsuit filed in Charleston seeking to invalidate non-condo foreclosures by owners’ associations. You can read that blog here but the short version is that the suit challenges foreclosures on the grounds that these non-profit corporations don’t have the power to create liens for unpaid assessments prior to obtaining judicial judgments. Condominium associations established through the Horizontal Property Regime Act have statutory authority to create liens, but the power of non-condo projects is created by restrictive covenants. We’ll have to wait and see how that suit turns out, but if the plaintiffs there are successful, foreclosure practice will change drastically in South Carolina.

gavel house

Our Court of Appeals decided a case* on April 4th that could have made drastic changes in another way. In fact, Richland County’s Master-in-Equity, Joseph Strickland, stated in his order that “the practice of homeowners’ association foreclosures would effectively be eradicated if (the Plaintiffs’) position came to bear.”

This appeal was handled by the law office of my friend, Brian Boger, a Columbia lawyer and well-known champion of consumers’ rights. The appeal argued that the $3,036 successful bid “shocked the conscience” and violated equitable principles. The parties agreed that the home was valued at $128,000. There was a mortgage balance of $66,004, leaving equity of $61,996. The Hales did not argue that there were irregularities in foreclosure process, but instead argued that the low bid should have encouraged the Master to use his gavel to “do equity”.

Comparing the successful bid to their equity using the “Equity Method”, the Hales argued that the bid amounted to 4.8% of the fair market value of the property. The HOA argued, using the “Debt Method”, that the bid must be added to the senior mortgage balance to judge its sufficiency because the successful bidder would have to pay the senior mortgage to have good title. In this case, using the Debt Method, the bid amounted to 54.94% of the fair market value. The Court of Appeals agreed that the Debt Method was the proper method for considering a senior encumbrance in a foreclosure.

The Court found no South Carolina cases that expressly weighed the two methods of judging a bid, but pointed to prior cases that considered the amount of a senior mortgage in the determination and found a 3.15% bid sufficient. One reason the Court of Appeals prefers the Debt Method is that it will result in “fewer set asides”.  In other words, the Court of Appeals is not interested in upsetting the foreclosure practice applecart at this point.

Justice Lockemy dissented, stating that he thought it improper to give a judicial sale buyer credit for assuming a debt it is not legally required to pay. He said the Court’s decision could create a perverse circumstance where a judicial sale bidder purchases property for a de minimis amount simply to capitalize on rental revenue until the senior lienholder forecloses. The majority called this argument a solution in search of a problem because there was no evidence that the successful bidder in this case was engaged in such a scheme and because the successful bidder must satisfy the mortgage to obtain clear title.

Foreclosure practice in South Carolina remains the same…for now.

* Winrose Homeowners’ Association, Inc. v. Hale, South Carolina Court of Appeals Opinion 5549 (April 4, 2018)

Drafting survivorship deeds continues to be a concern

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Pay attention to tricky South Carolina law!

This blog has addressed the issue of drafting survivorship deeds previously. This issue comes back up today because the South Carolina Bar’s Real Estate Practices Section’s listserv discussed this issue, in part, last week.

The thread began with a question about whether a tenancy in common with a right of survivorship is a recognized estate in South Carolina. I believe that the concern arose from some drafting liberties taken by attorneys with these deeds. In my opinion, to create a survivorship deed in South Carolina, the drafter should follow the case or the statute exactly. And it is my opinion that if the drafter follows the case or statute exactly, then a valid survivorship estate is created, and that estate will avoid probate for the property in question at the first death.

Let’s take a look at the case and the statute.

dee house

More than a decade has elapsed since our Supreme Court surprised dirt lawyers with Smith v. Cutler,* the case that told us there were already in place two survivorship forms of ownership in South Carolina. We apparently missed that day in law school! These two forms of ownership are joint tenancy (which we knew and loved) and tenancy in common with an indestructible right of survivorship (which slipped by us somehow). This is a mini-history lesson about how we got to this state of the law and a reminder for dirt lawyers to carefully draft deeds.

Under the common law in South Carolina, tenancy in common is the favored form of ownership. A deed to George Clooney and Amal Clooney (whether George and Amal are married or not) will result in a tenancy in common. At the death of George or Amal, the deceased’s fifty percent interest in the property will pass by will or intestacy laws. Joint tenancy was not favored in South Carolina, and there was no tenancy by the entirety that would have saved the property from probate (and creditors) for a married couple.

A rather convoluted 1953 case** interpreted a deed that intended to create a tenancy by the entirety as creating a shared interest in property between husband and wife referred to as a tenancy in common with an indestructible right of ownership. This is the case that the Smith v. Cutler Court referred to as creating the form of ownership we missed.

It’s not technically true that all of us missed this form of ownership. Some practitioners did use the language from the 1953 case to create a survivorship form of ownership. The magic language is “to George Clooney and Amal Clooney for and during their joint lives and upon the death of either of them, then to the survivor of them, his or her heirs and assigns forever in fee simple.”  Other practitioners routinely used the common law language: “to George Clooney and Amal Clooney as joint tenants with rights of survivorship and not as tenants in common.”

Conveying title from a person to himself and another person establishing survivorship was not possible in South Carolina prior to 1996 because the old common law requirement of unities of title could not be met. To create a survivorship form of ownership, the property owner conveyed to a straw party, who would then convey to the husband and wife, complying with the unities of title requirement and establishing survivorship.

A 1996 statutory amendment to §62-2-804 rectified this problem by providing that a deed can create a right of survivorship where one party conveys to himself and another person. The straw party is no longer needed. This statute was given retroactive effect.

In 2000, our legislature added §27-7-40, which provides that a joint tenancy may be created, “in addition to any other method which may exist by law” by the familiar words “as joint tenants with rights of survivorship and not as tenants in common”.  The statute addresses methods for severing joint tenancies which typically results in a tenancy in common. For example, unless the family court decides otherwise, a divorce severs a joint tenancy held by husband and wife, vesting title in them as tenants in common.  A deed from a joint tenant to another severs the joint tenancy. A conveyance of the interest of a joint tenant by a court severs the joint tenancy.

Following the enactment of §27-7-40, most practitioners used the language set out in the statute to create a joint tenancy, “as joint tenants with rights of survivorship and not as tenants in common.” Five years later, Smith v. Cutler required us to examine our drafting practices with fresh eyes. The court held that a joint tenancy with a right of survivorship is capable of being defeated by the unilateral act of one tenant, but a tenancy in common with an indestructible right of survivorship is not capable of being severed by a unilateral act and is also not subject to partition.

Real estate lawyers in the resort areas in our state are often asked to draft survivorship deeds because couples from other states are accustomed to tenancy by the entirety. Until Smith v. Cutler, most practitioners did not believe different estates were created by the different language commonly in use. We believed joint tenancy was created in both cases.

Now, clients should be advised about the different estates and should choose the form of ownership they prefer. I’ve discussed this issue with many lawyers who advise married couples to create the indestructible form of ownership under the case. Others who seek survivorship are often advised to create joint tenancy under the statute.  I see many deeds from the midlands and upstate that use the traditional tenancy in common form of ownership. I’ve heard estate planners prefer tenancy in common so the distribution at death can be directed by will. Lawyers who draft deeds for consumers need to be aware of and need to address the various forms of ownership with their clients.

One final thought on the survivorship issue in South Carolina. Do we now have a form of ownership that protects property from creditors of one of the owners? If a tenancy in common with an indestructible right of survivorship is not subject to partition, then it may not be reachable by the creditors of one of the owners. Let me know if you see a case that makes such a determination. It would be an interesting development.

If anyone on the listserv has different opinions from those stated here, I would love to hear them. The real estate bar in South Carolina would love to hear them, too!

 

 

 

*366 S.C. 546, 623 S.E.2d 644 (2005)

**Davis v. Davis, 223 S.C. 182, 75 S.E.2d 45 (1953)