Unpublished opinions don’t typically get my attention, but my friend, Bill Booth, sent this one* to me because he found it interesting, and I do, too. As a reminder, unpublished opinions have no precedential value, but they sometimes provide insight on how the Court might react in a similar situation, at least under the current makeup of the court.
The issue in this case was whether a notation on a subdivision plat that certain lots were “for agricultural use only” created a valid restriction of the use of the lots. Mikell Scarborough, Master-in-Equity for Charleston County, granted summary judgment, relying on extrinsic evidence to conclude that there was no intent to create a restriction despite the plain language on the face of the plat. That decision was affirmed.
The Court cited familiar cases holding that restrictive covenants are contractual in nature and must be strictly construed in favor of the free use of property. The Court also referred to cases holding that when a deed describes land as shown on a plat, the plat becomes a part of the deed. The interesting twist became whether the plat notation created an ambiguity that would allow the introduction of extrinsic evidence.
The Court found that the language in the plat was not ambiguous, but that the origin of the note created the ambiguity. The surveyor provided an affidavit to the effect that the Charleston County Planning Commission placed the agricultural use restriction on the plat “for the purpose of indicating that Charleston County would not, at that time, approve building permits for the lots because (the lots in question) did not meet current minimum standards for a modified conventional sub-service disposal system.”
When the plat was submitted for approval, the property owners included a letter explaining they were aware that the land possessed poor soil conditions for septic systems. The letter requested that the subdivision be approved with the stipulation that any lot that did not support a septic system would be restricted from becoming a building lot until public sewer service became available.
The case doesn’t make this point clear, but I am assuming the Appellant sued other lot owners who had built on their lots despite the plat notation. In other words, the Appellant wanted the restriction enforced as to other lots, not the lot the Appellant purchased. Interestingly, one house had been built before the Appellant purchased its lot.
A representative of the Appellant claimed he relied on the plat notation and that his title insurance company told him the lots were restricted. The Court found it significant, however, that the property owners who recorded the plat did not intend to restrict the property.
The Appellant argued that the deeds for all the lots specifically state that the property is subject to all restrictions, reservations, easements and other limitations that appear of record, including on the Plat. The Court held, citing 20 Am. Jur. 2d Covenants, Conditions, and Restrictions §151 (2015) that common “subject to” language does not create a restriction where none exists.
The Appellant also argued that an agricultural use exception in the title insurance policy was evidence that the restriction ran with the land, but the Court held that the title insurance company was merely noting the provision was on the plat so that it would not be liable if the Appellant could not build on its lot.
The Court concluded that the record does not contain a scintilla of evidence to support the imposition of a building restriction on the Respondents’ lots.
Carpenter Braselton, LLC v. Roberts, South Carolina Court of Appeals Unpublished Opinion No. 2021-UP-280.
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