Real Property – Amended Master Deed – Consent of Vested Unit Owners

Listen to this article

The 2007 Amended Master Deed was invalid because it improperly converted the Ship’s Store and Fuel Docks from common elements into individual units without the consent of the vested unit owners, who retain undivided ownership rights.

We affirmed the order of the master-in-equity.

We affirmed the master-in-equity’s order granting declaratory relief to certain property owners and the Mariner’s Cay Marina Council of Co-Owners against Appellants Mariner’s Cay Marina Condo, LLC, Mariner’s Cay Fuel Dock, LLC, and George A. Farmer, Jr. The dispute arose from the 2006 and 2007 Master Deeds governing the Mariner’s Cay Horizontal Property Regime, which included boat slips, a Ship’s Store building, and Fuel Docks. The 2006 Master Deed, establishing the horizontal property regime, designated the Ship’s Store and Fuel Docks as common elements and vested undivided ownership interests in these facilities in all unit owners. It also specified that amendments adversely affecting any unit’s title required written consent of the owners. In 2007, the Declarant recorded an Amended Master Deed purporting to convert the Ship’s Store and Fuel Docks from common elements into individual units without obtaining such consent. These units were subsequently conveyed through multiple parties and ultimately came under Farmer’s control. Following these transfers, disputes arose over owners’ access to these facilities, prompting the Council and individual owners to challenge the 2007 Amended Master Deed.

The master-in-equity initially granted summary judgment in favor of the Appellants, finding Respondents had acquiesced to the changes and were barred by judicial estoppel. However, upon reconsideration, the master vacated this decision and proceeded to trial. Testimony at trial established that the individual property owners were unaware of any amendment attempts and would have opposed the removal of the Ship’s Store and Fuel Docks as common elements. The master concluded that the 2007 Amended Master Deed was void to the extent it divested owners of their vested property interests, as it violated Section 27-31-70 of the South Carolina Horizontal Property Act, which prohibits division of common elements, and the explicit consent requirements of the 2006 Master Deed. The master also rejected Appellants’ claims of acquiescence, noting that access restrictions only arose after Farmer assumed control in 2016, and found judicial estoppel inapplicable because the individual owners were not parties to the prior foreclosure action.

On appeal, Appellants argued that Sections 27-31-60 and 27-31-70 were misinterpreted and that Respondents had acquiesced to the changes. We disagreed, emphasizing that once unit owners have vested interests in common elements, these interests cannot be unilaterally divested, and that Section 27-31-60 governs proportional ownership rather than consent to divestment. We further held that judicial estoppel did not bar Respondents’ claims, as the elements of inconsistency, intent to mislead, and prior benefit were not satisfied.

Affirmed.

Heatley v. Mariner’s Cay Marina Condo LLC (Lawyers Weekly No. 011-004-26, 14 pp.0 (Stephanie P. McDonald, J.) Appealed from Charleston County (Mikell R. Scarborough, Master-in-Equity) George Hamlin O’Kelley, III, of Buist Byars & Taylor, LLC, of Mt. Pleasant, for Appellants Mariner’s Cay Marina Condo, LLC and Mariner’s Cay Fuel Dock, LLC; and Kevin W. Mims and Whidbee Sale Perrin, Sr., both of Luzuriaga Mims, LLP, of Charleston, for Appellants Mariner’s Cay Marina Condo, LLC, and George A. Farmer, Jr. Capers G. Barr, III, of Barr Unger & McIntosh, LLC, and David Cooper Cleveland, of Clawson & Staubes, LLC, both of Charleston, for Respondents. South Carolina Court of Appeals