Warburton v. Virginia Beach Federal Savings & Loan Ass'n

ORME, Presiding Judge,

concurring in the result:

I agree that the summary judgment should be reversed. My route in coming to this conclusion varies somewhat from that described in the main opinion.

A plain reading of the LRA shows that Dr. Warburton was contractually entitled, as of the time he closed on the lot reserved for him, to a perpetual, free membership in a country club not in existence at the time he signed his LRA. Such a club membership, expressly stated to be freely transferable, is personal property.

Virginia Beach had notice of Dr. Warbur-ton’s existing right to purchase a lot when it made the loan. But while it is true that its borrower agreed to transfer a club membership to Dr. Warburton in due course, Virginia Beach never agreed to honor that obligation. When the borrower defaulted and Virginia Beach foreclosed, Virginia Beach was required to convey Dr. Warburton his lot, because his LRA gave him an equitable real property interest senior to Virginia Beach’s trust deed and therefore enforceable against Virginia Beach. By contrast, the obligation to transfer a club membership, mere personalty, remained the obligation of the borrower.

Dr. Warburton has his action for damages against the borrower for breach of the contract to provide him a club membership. But because the club membership was only personalty, Virginia Beach’s title to the property was not encumbered by the borrower’s contract to furnish such a membership and Virginia Beach is not otherwise obligated to furnish a membership to Dr. Warburton.