Vista Del Mar v. Vista Del Mar, LLC

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Vista Del Mar Condominium Association; Dennis M.
Merritt, Trustee of the Dennis M. Merritt Living Trust;
John J. Hawkins; and Eleanor N. Hawkins, Plaintiffs,
v.
Vista Del Mar Condominiums, LLC; Atlantic
Development Company, LLC; Atlantic Coast Funding,
LLC; John Doe, a nominal Defendant representing all
persons or entities unknown who may claim an interest in
the property that is the subject of this action, Defendants,
And
Atlantic Development Company, LLC and Atlantic Coast
Funding, LLC, Third-Party Plaintiffs,
v.
Barbara P. Swartz; Nancy S. Case; Winston Salem Daly
Development, LLC; Charles F. Webber; Mark L.
Skowron, as Trustee of Mark L. Skowron Revocable
Trust dated April 24, 2002 and Gail L. Skowron, as
Trustee of the Gail L. Skowron Revocable Trust dated
04/24/2002; Norman W. Taylor, Trustee of the Norman
W. Taylor Revocable Living Trust dated April 28, 2008;
Tim Mitchell Development, LLC; Eric R. Sklut and Lori
Levine Sklut; Fred C. Warehime and Patricia F.
Warehime; James W. Blackburn, III and Peggy S.
Blackburn; Barbara I. Bowser; KHDH, LLC; Beth G.
Bauknight; Roderick D. Sanders (or his successor), as
Trustee of the Amended and Restated Revocable
Declaration of Trust of Anne Mallard Sanders u/a/d
January 16, 2015; GGK Properties, LLC; Leon Levine
and Sandra Levine; Joseph Moglia and Amy H. Moglia;
Angela M. Mason, as Trustee of the Angela Mason
Revocable Trust dated June 9, 2003 and amended and
restated May 27, 2007; Dexter R. Barbee, Sr.; Daniel M.
Talbert, Sr.; Craig W. Lawton; David N. Dalton; Janet
W. Weed, Trustee of the Janet W. Weed Revocable Trust
under Trust Instrument dated April 17, 2013; Robert H.
Messier, Jr. and Janice H. Messier; Jeffrey Schneider,
Trustee for the Jeffrey Schneider Revocable Trust dated
August 1, 2017; Phillip Kleinman and Charisse D.
Kleinman; Stephen Gatto and Camille Gatto; Lutz Real
Estate, LP; Astorg Imports, Inc.; ABLP Properties, LLC;
Sutton Children, LLC; Daniel C. Schuster and Mardell J.
Schuster; Roy C. Putrino and Eileen M. Putrino; Spencer
Squier and Sherri Squier; VDM 1004, LLC; Roger B.
Matherly and Bonnie V. Matherly; ITAC 203 LLC;
Rebecca R. Shroff and Kersi S. Shroff; Sandra P. Levine
and Lori Ann Sklut, Co-Trustees of the Irrevocable Trust
F/B/O Amy Beth Levine dated September 18, 1986;
David E. Lukowski; Richard B. Kline and Leslie Kline;
James P. Aplington and Carol D. Aplington; Michael L.
Van Glish and Judith K. Van Glish; Anna A. Olsen;
Anne Marie Murray; William J. Pridemore and Irina V.
Pridemore; William B. Davidson and Julia Davidson;
Bruce Alexander Henderson and Valerie Sokolov; Mark
W. Lee; Sue David Kline; Thomas McKiernan and Anne
McKiernan; Philip H. Strobl and Amy Mott Strobl;
James M. Faircloth and Sylvia Faircloth; Cheryl Jackson
and Phillip H. Jackson; Weldon Riggs and Tiffiany
Riggs; Janet P. Merritt, Trustee of the Janet P. Merritt
Living Trust U/A dated March 24, 2000; Melia Mooney
Pavoris; William L. Mansfield and Patricia S. Mansfield;
Stuart W. Gibbs and Helen R. Gibbs; Michael R.
Blackburn and Pamela M. Blackburn; Jeffrey G. Edwards
and Teresa T. Edwards; Michael J. Wilk, Third-Party
Defendants,
Of which Vista Del Mar Condominium Association;
Dennis M. Merritt, Trustee of the Dennis M. Merritt
Living Trust; John J. Hawkins; Eleanor N. Hawkins,
Barbara P. Swartz; Nancy S. Case; Winston Salem Daly
Development, LLC; Charles F. Webber; Mark L.
Skowron, as Trustee of Mark L. Skowron Revocable
Trust dated April 24, 2002 and Gail L. Skowron, as
Trustee of the Gail L. Skowron Revocable Trust dated
04/24/2002; Norman W. Taylor, Trustee of the Norman
W. Taylor Revocable Living Trust dated April 28, 2008;
Tim Mitchell Development, LLC; Eric R. Sklut and Lori
Levine Sklut; Fred C. Warehime and Patricia F.
Warehime; James W. Blackburn, III and Peggy S.
Blackburn; Barbara I. Bowser; KHDH, LLC; Beth G.
Bauknight; Roderick D. Sanders (or his successor), as
Trustee of the Amended and Restated Revocable
Declaration of Trust of Anne Mallard Sanders u/a/d
January 16, 2015; GGK Properties, LLC; Leon Levine
and Sandra Levine; Joseph Moglia and Amy H. Moglia;
Angela M. Mason, as Trustee of the Angela Mason
Revocable Trust dated June 9, 2003 and amended and
restated May 27, 2007; Dexter R. Barbee, Sr.; Daniel M.
Talbert, Sr.; Craig W. Lawton; David N. Dalton; Janet
W. Weed, Trustee of the Janet W. Weed Revocable Trust
under Trust Instrument dated April 17, 2013; Robert H.
Messier, Jr. and Janice H. Messier; Jeffrey Schneider,
Trustee for the Jeffrey Schneider Revocable Trust dated
August 1, 2017; Phillip Kleinman and Charisse D.
Kleinman; Stephen Gatto and Camille Gatto; Lutz Real
Estate, LP; Astorg Imports, Inc.; ABLP Properties, LLC;
Sutton Children, LLC; Daniel C. Schuster and Mardell J.
Schuster; Roy C. Putrino and Eileen M. Putrino; Spencer
Squier and Sherri Squier; VDM 1004, LLC; Roger B.
Matherly and Bonnie V. Matherly; ITAC 203 LLC;
Rebecca R. Shroff and Kersi S. Shroff; Sandra P. Levine
and Lori Ann Sklut, Co-Trustees of the Irrevocable Trust
F/B/O Amy Beth Levine dated September 18, 1986;
David E. Lukowski; Richard B. Kline and Leslie Kline;
James P. Aplington and Carol D. Aplington; Michael L.
Van Glish and Judith K. Van Glish; Anna A. Olsen;
Anne Marie Murray; William J. Pridemore and Irina V.
Pridemore; William B. Davidson and Julia Davidson;
Bruce Alexander Henderson and Valerie Sokolov; Mark
W. Lee; Sue David Kline; Thomas McKiernan and Anne
McKiernan; Philip H. Strobl and Amy Mott Strobl;
James M. Faircloth and Sylvia Faircloth; Cheryl Jackson
and Phillip H. Jackson; Weldon Riggs and Tiffiany
Riggs; Janet P. Merritt, Trustee of the Janet P. Merritt
Living Trust U/A dated March 24, 2000; Melia Mooney
Pavoris; William L. Mansfield and Patricia S. Mansfield;
Stuart W. Gibbs and Helen R. Gibbs; Michael R.
Blackburn and Pamela M. Blackburn; Jeffrey G. Edwards
and Teresa T. Edwards; Michael J. Wilk, are the
Appellants,
And
Of Which Vista Del Mar Condominiums, LLC, Atlantic
Development Company, LLC, Atlantic Coast Funding,
LLC and John Doe, a nominal Defendant representing all
persons or entities unknown who may claim an interest in
the property that is the subject of this action are the
Respondents.
Appellate Case No. 2020-000528
Appeal From Horry County
Larry B. Hyman, Jr., Circuit Court Judge
Opinion No. 6016
Heard June 15, 2023 – Filed August 16, 2023
AFFIRMED
Kenneth Ray Moss and Paul J. Ekster, both of Wright,
Worley, Pope, Ekster & Moss, PLLC, of North Myrtle
Beach; and Robert E. Lee, of Robert E. Lee, LLC, all for
Appellants.
Demetri K. Koutrakos and Harry Alwyn Dixon, both of
Callison Tighe & Robinson, LLC, of Columbia, for
Respondents Atlantic Development Company, LLC;
Atlantic Coast Funding, LLC; and John Doe.
James Christopher Clark, of McAngus Goudelock &
Courie, LLC, of Myrtle Beach, for Respondent Vista Del
Mar Condominiums, LLC.
VERDIN, J.: Vista Del Mar Condominium Association (the Association) and the
individual unit owners (Unit Owners) of the Vista Del Mar Horizontal Property
Regime (the Regime) (collectively, Appellants) appeal the circuit court's order
granting summary judgment to Atlantic Development Company and Atlantic Coast
Funding, LLC (collectively, Respondents), quieting title in favor of Respondents to
a 2.58-acre tract (the Property), which had been a part of the Regime, and declaring
Respondents had a valid easement (Access Easement) that ran with the title to the
Property. On appeal, Appellants argue the circuit court erred in upholding the
removal of the Property from the Regime because (1) the removal of the Property,
which was a common area, was a violation of the Horizontal Property Act 1 (the
Act); and (2) the developer, Vista Del Mar, LLC (Developer), no longer had
authority to take any action concerning the Regime at the time of the removal. In
addition, Appellants argue Developer did not have authority to grant an express
easement over Regime property that benefitted the Property. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
On December 4, 2003, Developer filed the Master Deed creating the Regime,
which consisted of 5.853 acres. The Master Deed provided Phase I of the Regime
was composed of Building Number 1, which contained twenty-five units. With the
filing of the Master Deed, a transition period began (the Transition Period), during
which Developer had authority to expand or contract the Regime and act on behalf
of the Association. The Master Deed specified that Developer was entitled to
expand the Regime in five additional phases to a total of 250 units. It also
authorized Developer to "subdivide portions of the [c]ommon [a]rea from the
[Regime] which are unimproved with structures[] and to remove the subdivided
portion" through the use of an amendment of the Master Deed, with Developer
acting on behalf of itself and as attorney-in-fact for all unit owners.
1
S.C. Code Ann. §§ 27-31-10 to -430 (2007 & Supp. 2022).
Developer submitted an additional five acres to the Regime with the First
Amendment to the Master Deed filed June 27, 2006. The First Amendment also
described Building 2, which consisted of forty-one units. Developer subsequently
removed the Property, which was comprised of portions of the original acreage and
the five acres added in the First Amendment to the Master Deed, by filing the
Corrected Fourth Amendment to the Master Deed on April 6, 2009. The Corrected
Fourth Amendment to the Master Deed referenced a plat that described the
Property and showed the Access Easement.
On December 19, 2013, Developer sold the Property to GDMB Ocean, LLC
(GDMB Ocean) and assigned the developer rights to GDMB Operations, LLC
(GDMB Operations). On November 7, 2014, GDMB Operations filed an
amendment to the Master Deed surrendering its Class B Membership, which it
contended triggered the three-month phase to end the Transition Period. The
Association subsequently granted GDMB Ocean an express easement consistent
with the Access Easement shown on the plat referenced in the Corrected Fourth
Amendment to the Master Deed.
GDMB Ocean sold the Property and an additional 26.53-acre tract to Atlantic
Development Company (Atlantic Development) on January 6, 2016. Atlantic
Development secured a promissory note from Atlantic Coast Funding for
$24,600,000.00 with a mortgage on both tracts.
The Association and three unit owners brought this action seeking a declaration
that the removal of the Property from the Regime was not effective and the
Property remained a common area of the Association. Respondents filed
counterclaims and a third-party complaint against all of the remaining Unit Owners
seeking to quiet title and a declaratory judgment that Atlantic Development owned
the Property and had rights to the Access Easement. Respondents filed a motion
for summary judgment, which the circuit court initially denied. However, on
Respondents' motion to alter or amend, the circuit court granted that motion and
summary judgment to Respondents. It held Developer had the authority to remove
the Property from the Regime pursuant to the Master Deed and the Act did not
prohibit the removal. In addition, it found (1) GDMB Operations, acting on behalf
of the Association pursuant to its developer rights, had the authority to grant the
express Access Easement and (2) Respondents had an implied easement by plat.
This appeal followed.
STANDARD OF REVIEW
The appellate court reviews the grant of summary judgment by applying the same
standard the circuit court applied pursuant to Rule 56(c) of the South Carolina
Rules of Civil Procedure. Englert, Inc. v. LeafGuard USA, Inc., 377 S.C. 129,
133-34, 659 S.E.2d 496, 498 (2008). Summary judgment is appropriate when
"there is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Stoneledge at Lake Keowee Owners'
Ass'n v. Clear View Constr., LLC, 413 S.C. 615, 620, 776 S.E.2d 426, 429 (Ct.
App. 2015) (omission in original) (quoting Rule 56(c), SCRCP). "When the circuit
court grants summary judgment on a question of law, we review the ruling de
novo." Id. Furthermore, "[i]n determining whether any triable issue of fact exists,
the evidence and all inferences which can reasonably be drawn therefrom must be
viewed in the light most favorable to the nonmoving party." Stoneledge at Lake
Keowee Owners' Ass'n, 413 S.C. at 620, 776 S.E.2d at 429. "Once the moving
party carries its initial burden [of demonstrating the absence of a genuine issue of
material fact], the opposing party must do more than rest upon the mere allegations
or denials of his pleadings, but must, by affidavit or otherwise, set forth specific
facts to show that there is a genuine issue for trial." Lord v. D & J Enters., 407
S.C. 544, 553, 757 S.E.2d 695, 699 (2014). "However, it is not sufficient for a
party to create an inference that is not reasonable or an issue of fact that is not
genuine." Stoneledge at Lake Keowee Owners' Ass'n, 413 S.C. at 620, 776 S.E.2d
at 429 (quoting Town of Hollywood v. Floyd, 403 S.C. 466, 477, 744 S.E.2d 161,
166 (2013)).
LAW/ANALYSIS
I. Transition Period
Appellants argue the circuit court erred in finding no genuine issue of material fact
existed as to whether the Transition Period ended before Developer filed the
Corrected Fourth Amendment to the Master Deed, which removed the Property
from the Regime. We disagree.
"When a motion for summary judgment involves a question as to the construction
of a deed, the [circuit court] must first determine whether the language of the deed
is ambiguous." Edgewater on Broad Creek Owners Ass'n v. Ephesian Ventures,
LLC, 430 S.C. 400, 406, 845 S.E.2d 211, 214 (Ct. App. 2020). "The language in a
deed is ambiguous if it is reasonably susceptible to more than one interpretation."
Id. (quoting Penza v. Pendleton Station, LLC, 404 S.C. 198, 204, 743 S.E.2d 850,
853 (Ct. App. 2013)). "It is a question of law for the court whether the language of
a contract is ambiguous." Harbin v. Williams, 429 S.C. 1, 8, 837 S.E.2d 491, 495
(Ct. App. 2019) (quoting S.C. Dep't of Nat. Res. v. Town of McClellanville, 345
S.C. 617, 623, 550 S.E.2d 299, 302-03 (2001)). If a court determines the language
is ambiguous, the question of the parties' intent becomes a question of fact, and the
court may admit evidence to show the intent of the parties. Id. "On the other hand,
the construction of a clear and unambiguous deed is a question of law for the
court." Id. (quoting S.C. Dep't of Nat. Res., 345 S.C. at 623, 550 S.E.2d at 303).
"In construing a deed, 'the intention of the grantor must be ascertained and
effectuated, unless that intention contravenes some well settled rule of law or
public policy.'" Windham v. Riddle, 381 S.C. 192, 201, 672 S.E.2d 578, 582-83
(2009) (quoting Wayburn v. Smith, 270 S.C. 38, 41, 239 S.E.2d 890, 892 (1977)).
"In determining the grantor's intent, the deed must be construed as a whole and
effect given to every part if it can be done consistently with the law." Id. at 201,
672 S.E.2d at 583 (quoting Gardner v. Mozingo, 293 S.C. 23, 25, 358 S.E.2d 390,
391-92 (1987)). "The intention of the grantor must be found within the four
corners of the deed." Id. (quoting Gardner, 293 S.C. at 25, 358 S.E.2d at 392).
"Therefore, 'summary judgment is proper and a trial unnecessary whe[n] the
intention of the parties as to the legal effect of the [deed] may be gathered from the
four corners of the instrument itself.'" Edgewater on Broad Creek Owners Ass'n,
430 S.C. at 407, 845 S.E.2d at 214 (quoting HK New Plan Exch. Prop. Owner I,
LLC v. Coker, 375 S.C. 18, 23, 649 S.E.2d 181, 184 (Ct. App. 2007)).
The Master Deed provided the Transition Period ended on the earlier of option 1:
December 31, 2017; option 2: three months after the sale of 99% "of the maximum
number of Units to be contained in all phases of the Regime"; or option 3: three
months after Developer surrendered its authority as a Class B member of the
Association. 2
Appellants contend that option 2 is ambiguous as to whether the end of the
Transition Period was triggered upon the sale of 99% of the Units actually
constructed, as they interpret the provision, or upon the sale of the maximum
number of Units that could have been constructed if all phases had been added to
the Regime, as Respondents claim and the circuit court found. Appellants assert
that because only the first two phases of the Regime were completed, the
2
The Association's Articles of Incorporation designated Developer as a Class B
member, authorizing it to have three votes for every vote held by Type A
members, plus one vote, and granting it the right to appoint or remove any member
of the Association's Board of Directors.
Transition Period ended around March 31, 2008, which was three months after
99% of the units in the completed buildings were sold; thus, Developer no longer
had the authority to remove the Property from the regime on April 6, 2009.
We hold option 2 is not reasonably susceptible to more than one interpretation, and
thus, it is not ambiguous. See Edgewater on Broad Creek Owners Ass'n, 430 S.C.
at 406, 845 S.E.2d at 214 ("The language in a deed is ambiguous if it is reasonably
susceptible to more than one interpretation." (quoting Penza, 404 S.C. at 204, 743
S.E.2d at 853)). This option triggered the end of the Transition Period with the
sale of 99% "of the maximum number of Units to be contained in all phases of the
Regime." (emphasis added). The Master Deed clearly contemplated Developer
constructing the Regime in phases and allowed it the authority to expand and
contract the Regime as it desired. The Transition Period was to end the earlier of
December 31, 2017 (option 1); when Developer completed the entire Regime
(option 2); or when Developer chose to end the development by surrendering its
authority as a Class B member (option 3).
Furthermore, we hold option 2 was never triggered because Developer never
completed all phases of the Regime contemplated in the Master Deed. Instead, the
Transition Period did not end until February 2015, which was three months after
GDMB Operations filed an amendment to the Master Deed surrendering its Class
B authority. Accordingly, we hold the circuit court did not err in finding the
Transition Period had not ended and Developer still possessed the authority to
remove the Property from the Regime on April 6, 2009.
II. Removal of a Common Area
Appellants argue the circuit court erred in allowing Respondents to divide the
common elements and remove the Property from the Regime because the plain
language of section 27-31-70 of the Act explicitly bars such division. We disagree.
"The cardinal rule of statutory construction is to ascertain and effectuate the intent
of the legislature." Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581
(2000). "The legislature's intent should be ascertained primarily from the plain
language of the statute." Hinton v. S.C. Dep't of Prob., Parole & Pardon Servs.,
357 S.C. 327, 333, 592 S.E.2d 335, 339 (Ct. App. 2004). "Statutes must be read as
a whole and sections which are part of the same general statutory scheme must be
construed together and each given effect, if it can be done by any reasonable
construction." Id. "The interpretation of a statute is a question of law."
DomainsNewMedia.com, LLC v. Hilton Head Island-Bluffton Chamber of Com.,
423 S.C. 295, 300, 814 S.E.2d 513, 516 (2018) (quoting Sparks v. Palmetto
Hardwood, Inc., 406 S.C. 124, 128, 750 S.E.2d 61, 63 (2013)).
"The rights and authority of [a horizontal property r]egime must be gleaned from
the . . . Act and from the master deed." Roundtree Villas Ass'n v. 4701 Kings
Corp., 282 S.C. 415, 421, 321 S.E.2d 46, 49 (1984). "The Act requires the
developer of the regime to record a master deed which expresses a comprehensive
list of particulars." Heritage Fed. Sav. & Loan v. Eagle Lake & Golf Condos., 318
S.C. 535, 539, 458 S.E.2d 561, 564 (Ct. App. 1995); see, e.g., § 27-31-100 (setting
forth the particulars a master deed must contain). A developer may "reserve
certain rights provided he states those rights with specificity in the master deed."
Heritage Fed. Sav. & Loan, 318 S.C. at 541, 458 S.E.2d at 565. Specifically, a
developer may reserve the right to amend the master deed without the consent of
all of the unit owners. Id. If the developer plans to develop the property in phases,
the master deed must contain a general description of the plan of development
including (1) the maximum number of units in each future phase; (2) the date the
developer will elect whether to proceed with each phase; (3) a general description
of any additional common elements; and (4) a chart showing each original unit
owners' percentage interest in the common elements if the developer elects to
proceed with all stages of development. § 27-31-100(g). In addition, the
developer must attach to the master deed a plot plan and building plans showing
proposed improvements and common elements. § 27-31-110.
Generally, the unit owners in a horizontal property regime hold the common
elements as tenants in common. See Baker v. Town of Sullivan's Island, 279 S.C.
581, 584, 310 S.E.2d 433, 435 (Ct. App. 1983) ("[T]he . . . Act provides that the
ownership of the land upon which is built a condominium is held as co-tenants by
the owners . . . ."); § 27-31-60(a) (stating the unit owners in a horizontal property
regime "have a common right to a share, with the other co-owners, in the common
elements of the property, equivalent to the percentage representing the value of the
individual apartment, with relation to the value of the whole property"); § 27-31-80
("Each co-owner may use the elements held in common in accordance with the
purpose for which they are intended, without hindering or encroaching upon the
lawful rights of the other co-owners."). Usually when parties share in the
co-ownership of property, they have a right to request partition of the property.
See S.C. Code Ann. § 15-61-10(A) (Supp. 2022) (allowing "joint tenants and
tenants in common" to request partition of . . . lands, tenements and
hereditaments"); S.C. Code Ann. § 15-61-50 (2005) (allowing the court of
common pleas to order the partition of "real and personal estates held in joint
tenancy or in common"). The unit owners in a horizontal property regime,
however, do not have a right to partition the common elements. Section 27-31-70
of the Act provides, "The common elements, both general and limited, shall remain
undivided and shall not be the object of an action for partition or division of the co-
ownership. Any covenant to the contrary shall be void." See Baker, 279 S.C. at
584, 310 S.E.2d at 435 (stating the unit owners' tenants in common ownership of
common elements is not subject to partition). Thus, the unit owners cannot
partition their interest in common elements from other apartment owners, nor can
they divide their ownership interest in the common elements from their ownership
interest in their units.
The Act clearly allows for a developer to develop a regime in phases and requires a
developer to set forth in the master deed and plot plan the details of proposed
buildings and common elements. See § 27-31-100(g) (setting forth the particulars
the developer must have in the master deed to develop the regime in two or more
phases). The Act also contemplates that a developer may choose to forgo
completing all phases of the development. Section 27-31-60(b) of the Act grants
unit owners "the right to require specific performance of any proposed common
elements for recreational purposes set out in the master deed which are included in
the next stage of the development that applies to recreational facilities in the event
the additional stages of erection do not develop." The Act does not grant unit
owners similar rights to demand specific performance of the remaining common
elements that are not recreational. However, this court recognized "once common
elements are set aside and vested in the co-owners, such co-owners may not be
unilaterally deprived of their interests in the common elements by the actions of
the developer." Reyhani v. Stone Creek Cove Condo. II Horizontal Prop. Regime,
329 S.C. 206, 211, 494 S.E.2d 465, 468 (Ct. App. 1997).
Considering the Act as a whole, we hold Section 27-31-70's prohibition of partition
or division of common elements concerns the unit owners' rights in the common
elements and does not prohibit a developer from removing non-recreational
common elements from a regime unless those common elements have vested in the
unit owners pursuant to the terms of the master deed. Therefore, we look to the
terms of the Master Deed to discern whether Developer's removal of the Property
from the Regime was valid.
The Master Deed authorized Developer to expand or contract the Regime and act
on behalf of the Association during the Transition Period. It also allowed
Developer to "subdivide portions of the Common Area from the Project which are
unimproved with structures and to remove the subdivided portion" with an
amendment of the Master Deed, with Developer acting on behalf of itself and as
attorney-in-fact for all unit owners. Because Developer had the right to
unilaterally remove common areas unimproved with structures from the Regime,
the common areas did not become vested in the Unit Owners until they were
improved or the Transition Period ended. See Vested, Black's Law Dictionary
(11th ed. 2019) (defining "vested" as "[h]aving become a completed, consummated
right for present or future enjoyment; not contingent; unconditional; absolute).
Appellants have not presented any evidence the Property was improved with
structures. See Lord, 407 S.C. at 553, 757 S.E.2d at 699 (stating that "once the
moving party carries its initial burden [of demonstrating the absence of a genuine
issue of material fact], the opposing party must do more than rest upon the mere
allegations or denials of his pleadings, but must, by affidavit or otherwise, set forth
specific facts to show that there is a genuine issue for trial"). Accordingly, we hold
Developer's removal of the Property from the Regime was valid and the circuit
court did not err in granting Respondents summary judgment. 3
III. Access Easement
As to the circuit court's findings concerning the Access Easement, we affirm
pursuant to Rule 220(b), SCACR, and the following authorities: Skywaves I Corp.
v. Branch Banking & Tr. Co., 423 S.C. 432, 451, 814 S.E.2d 643, 653-54 (Ct. App.
2018) ("Under the two[-]issue rule, whe[n] a decision is based on more than one
ground, the appellate court will affirm unless the appellant appeals all grounds
because the unappealed ground will become the law of the case." (alterations in
original) (quoting Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 902 (2010),
abrogated on other grounds by Repko v. County of Georgetown, 424 S.C. 494, 818
S.E.2d 743 (2018))).
3
We note the circuit court erred in holding the Property was not a statutory
common element. Section 27-31-20 of the Act defines "general common
elements" in part as "[t]he land whether leased or in fee simple and whether or not
submerged on which the apartment or building stands" and "[a]ll other elements of
the property . . . rationally of common use or necessary to its existence, upkeep,
and safety." The Master Deed defined "common area" as "all of the Regime
property after excluding the Units . . . ." The Master Deed's use of the term
"common area" was the equivalent of the statutory term "common element"; the
Property, which indisputably was a common area of the Regime, was, therefore, a
common element.
CONCLUSION
Based on the foregoing, the circuit court's order granting summary judgment to
Respondents is
AFFIRMED.
WILLIAMS, C.J., and GEATHERS, J., concur.