An SC association lost an architectural case because it never pleaded which covenant was breached
An SC association lost an architectural case because it never pleaded which covenant was breached
2026-09-19 · South Carolina · Courts
An association that sues to enforce a covenant has to identify the covenant. One South Carolina association lost a case in 2026 because it did not.
Three unpublished Court of Appeals decisions from this year address the procedural mechanics of enforcement rather than the substance of any restriction. All three carry the Rule 268(d)(2), SCACR banner and have no precedential value, but together they describe how these cases are won and lost.
1. Plead the covenant, not "the governing documents"
The Pointes of Plantation Pointe Owners Association, Inc. v. Lucas, 2026-UP-255, submitted April 1 and filed May 27, 2026, affirmed summary judgment against the association in an architectural-control dispute over a concrete pad.1
Two grounds. There was no genuine issue of material fact that the owners breached covenants recorded between 1989 and 1999. And the association failed to plead a specific covenant violation, the court citing Jones v. Gilstrap: "it is essential in setting forth a breach of contract, either that the substance of the instrument be averred in the pleading, or that the contract itself be set forth."
Covenant enforcement in South Carolina is contract enforcement, and it is pleaded like one. A reference to "the governing documents" is not a reference to a term.
2. An association holding an easement can sue in nuisance
Mountain View Pointe Owners Association, Inc. v. Halsell, 2026-UP-014, heard October 6, 2025, filed January 14, 2026, then withdrawn, substituted and refiled May 13, 2026, affirmed per curiam.2
Owners paved a driveway across the association's recorded landscape easement. The court held the easement gives the association the sole right to manage beautification, vegetation, landscaping, soil disturbance and grading within the easement area, and that "non-exclusive" does not give the servient owners equal rights to use it in a way that defeats the association's use.
The owners were on constructive notice of the recorded easement under Harbison. The driveway was not necessary, since the lot abuts a public road and they had bought at a reduced price precisely because a longer driveway would be needed. And an association holding an easement may sue for private nuisance without exclusive possession, following Brooks v. Council of Co-Owners of Stones Throw HPR I.
3. Cosmetic changes do not reopen an unappealed ruling
Hester v. Razzano, 2026-UP-040, submitted January 29 and filed February 4, 2026, affirmed under Rule 220(b).3
A covenant barred using "outbuildings" as residences. The owner added wooden trellises between a garage and the main house, arguing the garage was now attached and therefore no longer an outbuilding. The court held the trellises were not sufficient attachment to change the structure's character — and, more consequentially, that an unappealed 2020 order finding the garage an outbuilding was the law of the case, following Atlantic Coast Builders v. Lewis.
An owner who does not appeal an adverse covenant ruling cannot relitigate it by altering the facts around its edges.
What the three have in common
None of them turns on whether the restriction was reasonable, or on what the words of the covenant mean. Each turns on a procedural or evidentiary requirement that operates before that question is reached:
- The instrument must be pleaded. An association suing on a covenant is suing on a contract term, and the term has to appear in the complaint.
- Recorded instruments bind through constructive notice — easements as much as declarations, and whether or not the owner read them.
- An association's standing follows from the property interest it holds. An easement holder can sue in nuisance without exclusive possession.
- Unappealed rulings are final as between the parties, and cosmetic alterations do not reset them.
Where this fits with the substantive rule
South Carolina construes restrictive covenants strictly, resolving doubts in favour of the free use of property, and places the burden on the party seeking enforcement. That canon decided the year's leading published covenant case, Hoffman v. Saad Holdings, and two unpublished decisions on hunting and on a 1954 restriction against "trailers."
These three decisions sit underneath that canon. An association faces a rule of construction that leans against it and, before reaching it, a set of pleading and preservation requirements that have decided several South Carolina cases this year on their own.
The recording requirement in Section 27-30-130 adds a further threshold: an unrecorded governing document is not enforceable, and rules and regulations must be recorded by January tenth of the year following adoption to remain enforceable. That question is answered from the county register of deeds before any argument about what a restriction means.
See architectural review in South Carolina and fences and exterior restrictions.
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