Lot owners sued four successive declarants of a golf community. The limitations period had already run
Lot owners sued four successive declarants of a golf community. The limitations period had already run
2026-09-19 · South Carolina · Courts
A derivative suit by lot owners against four successive declarants of a Horry County golf community failed on timing, not on the merits — and the reasoning tells South Carolina owners something uncomfortable about when their clock starts.1
Unpublished Opinion No. 2025-UP-299 was submitted February 1, 2025 and filed August 20, 2025, affirming per curiam. It carries the Rule 268(d)(2), SCACR banner and has no precedential value.
The claims
Two lot owners sued individually and derivatively on behalf of the Wild Wing Plantation property owners' association, against a series of declarants and their board appointees. The substance concerned declarant "funding alternative" assessment arrangements — the mechanism by which a developer covers an association's shortfall instead of paying assessments on unsold lots — and two retroactive covenant amendments, from 2011 and 2016.
The duties the court confirmed
Developers owe fiduciary duties to homeowners and to homeowners' associations regarding common areas, following Walbeck v. I'On Co., 439 S.C. 568 (2023). Those duties arise from control of the board, control of construction, and the obligation to maintain and convey common areas.
The protection the court confirmed alongside them
The business judgment rule, codified at Section 33-31-830, protects directors' intra vires acts — and the burden of proving lack of good faith rests on the challengers, not on the board, following Dockside Association v. Detyens.
Those two propositions sit together: a declarant owes real duties, and a challenger who says they were breached must prove bad faith.
Two clocks, and the shorter one
The decision identifies two limitations periods that can apply to claims of this kind:
- The general three-year period in Section 15-3-530, subject to the discovery rule.
- Section 33-31-830(f) — an action against a nonprofit director must be brought by the sooner of three years after the failure complained of, or two years after the harm is or should have been discovered.
The second is the one that catches people. A two-year period running from when harm should have been discovered is a short window for conduct that is, by its nature, often difficult for owners to see: internal assessment arrangements between a declarant and a board the declarant appoints.
Claims attacking the 2011 and 2016 amendments were time-barred.
The argument that would have saved them, and why it failed
The owners argued for equitable tolling, and separately that derivative claims should toll while the declarant controls the association — a rule that exists in some states precisely because a board controlled by the developer will not sue the developer.
Both arguments were held unpreserved for want of a Rule 59(e) motion.
So the case does not hold that tolling during declarant control is unavailable in South Carolina. It holds that the argument was not preserved here, which leaves the question open — and leaves owners without an appellate answer they can rely on.
That is the honest category-level statement: in South Carolina the clock on challenging declarant conduct does not obviously pause during declarant control, a two-year director-liability period may govern, and no published decision resolves it.
Why preservation keeps deciding these cases
This is the third South Carolina association decision of the window turned on preservation rather than substance. In Leonard v. WildeWood, three separate arguments were unpreserved, including a lien-authority challenge that needed a Rule 59(e) motion. In Dykes, the two tolling arguments went the same way.
The pattern is not about association law specifically — it is about how South Carolina appellate practice works — but it shapes what the body of association law actually says. Several of the questions owners most want answered remain open because they were raised too late in the proceedings below to be decided on appeal.
Turnover, generally
Across the entire 2025-2026 appellate window there is no South Carolina decision addressing declarant turnover or transition as a standalone holding. Dykes touches declarant control only through limitations and the business judgment rule.
South Carolina also has no statute prescribing a turnover deadline, a transition audit, or a handover of records and reserves — the sort of provisions that exist in many states' common-interest ownership acts. The Homeowners Association Act does not address the subject, and the declaration governs.
See also director qualifications and duties and budget approval.
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