Immunity is not a shield once willfulness is in evidence

The directors invoked Section 33-31-834, which gives directors of not-for-profit associations immunity from suit arising from the conduct of the affairs of the association. The court quoted the statute's own limit: that immunity "is removed when the conduct amounts to willful, wanton, or gross negligence."

On the record — which included evidence that the directors excluded the plaintiff, a sitting board member, from meetings — the court found evidence the appellants acted willfully in depriving him of his rights, and affirmed the refusal to find the individual defendants immune.

It also addressed the structure of the conspiracy claim: a corporation cannot conspire with itself, but its agents can conspire as individuals. That is what kept four named directors in the case after the association's own liability was established.

Why the master deed did not resolve it

The association's position depended on the terrace being a common element as a matter of document interpretation. The court held the master deed was ambiguous as to the terrace, which meant extrinsic evidence was properly admitted and the question properly went to the jury rather than being decided as a matter of law.

The Horizontal Property Act did not close the gap. Section 27-31-20(f)(2)'s list of common elements does not name balconies or terraces, so the statute supplied little guidance and the instrument had to.

Thirty-six years of exclusive use

The second strand was acquiescence. Exclusive use ran from 1982 to 2018 — thirty-six consecutive years by the owner and his uncle — with no one at the association questioning it before 2019. The court held that supported both the jury's finding and a standalone acquiescence claim, that acquiescence is not confined to boundary disputes, and that it is not barred by Section 27-31-70.

That last point is worth pairing with the Court of Appeals' 2026 decision in Heatley, where Section 27-31-70 was applied to void a declarant's attempt to divide common elements. The section bars dividing common elements by covenant; it did not bar a finding that decades of unchallenged exclusive use cut against the association's classification in the first place.

The dissent

The decision was not unanimous. Judge Hewitt concurred; Judge Geathers concurred in part and dissented in part, agreeing that the disputed master-deed language was capable of more than one reasonable interpretation but departing from the majority in part.

What this establishes at category level

• Self-help before adjudication carries risk. Removing an owner's installed property while the classification of the area is genuinely disputed supported conversion and punitive damages.
• Long unbroken exclusive use is evidence against a common-element claim, and can ground an independent acquiescence claim.
• Section 33-31-834 immunity has a willfulness exception with real teeth. Directors were apportioned punitive damages individually.
• Ambiguity in a master deed goes to a jury, not to the board's reading of it.

The opinion carries no withdrawal or substitution notation. Whether a petition for rehearing or certiorari was filed is not exposed by public sources.