The acquiescence argument, and why a decade of silence did not help

The appellants' central defence was that the owners had acquiesced — that they had said nothing for years, including when the Council filed an answer in the foreclosure action on the disputed units and failed to object to their sale.

That argument relied on Section 27-31-60, which speaks of the "acquiescence of the co-owners representing all the apartments." The court held the section does not supply an amendment procedure for this situation at all: it addresses the property interests of unit owners as to each other and their relative percentage ownership in common elements, not wholesale divestment. And even if it applied, there was no evidence that all co-owners — or these individual respondents — acquiesced. The owners testified they were unaware of any attempted amendment of the 2006 master deed.

Judicial estoppel failed for a related reason: the individual owners were never parties to the earlier foreclosure, and the court found nothing suggesting the integrity of the judicial process had been compromised by owners seeking to enforce vested property interests.

The vested line, after Vista Del Mar

The court distinguished Vista Del Mar Condominium Association, 441 S.C. 223 (Ct. App. 2023), where the master deed did authorise the developer to remove the property at issue — property that was neither vested nor recreational.

Read together, the two decisions locate the test at vesting. A declarant's reserved right to amend can reach property interests that have not yet vested in the co-owners and that the governing instrument expressly permits it to withdraw. It cannot reach common elements that have vested under the terms of the master deed.

What an owner or board can take from this at category level

• A broad "amend for any purpose" clause is not unlimited. Where the instrument itself carves out amendments affecting title without owner consent, that carve-out governs.
• Section 27-31-70 operates independently of the documents. A covenant purporting to permit division of common elements is void by statute, whatever the declarant reserved.
• Silence is not consent to divestment. Years of inaction, and even participation in litigation over the disputed property, did not establish acquiescence here.
• Downstream purchasers took nothing. The mortgage, foreclosure and resale of the converted units did not cure the defect in the amendment.

The counter-current worth knowing about

Amendment power in South Carolina is not a settled field, and one unpublished decision from 2025 pulls the other way on a different question. In Taylor v. Amar and Kennie Gill Living Trust, 2025-UP-181, the court affirmed an order dispensing with the Horizontal Property Act's unanimity requirement so an incorporated Hilton Head regime could correct its master deed over a holdout, relying on Section 33-31-160 of the Nonprofit Corporation Act.

That decision is unpublished and carries no precedential value under Rule 268(d)(2), SCACR. Heatley is published. The honest reading is that the published authority restricts amendments that strip vested interests, while a court-supervised route around unanimity exists in at least one unpublished application — and the relationship between the two has not been resolved by a published decision.

On finality: the opinion face carries no withdrawal or substitution notation, and public sources do not expose whether a petition for rehearing or certiorari is pending. For the framework these cases operate within, see South Carolina's governing statutes for associations.