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Article
Courtesy of The Charlotte Sun
By SUSAN
E. HOFFMAN
Published
January 23, 2009
ARCADIA -- Although a court decision voided certain Lake Suzy property restrictions recorded in 2004, the bulk of the original property restrictions remain in place.
In an order issued Wednesday in the case of Presilla v. Lake Suzy Property Owners Association Inc., 12th Circuit Judge James Parker concluded the original declaration of property restrictions recorded in 1973 and amended in 1999 remain in full force and effect.
Those restrictions included a duty of lakeside residents to maintain the lake, along with restrictions on lot size. The original document vested enforcement power in an architectural control committee.
Those restrictions were to be valid for 30 years and could be extended for 10-year periods unless a majority of Lake Suzy property owners agreed to change them.
In 2004, the association tried to mandate anyone who bought property in Lake Suzy after that date to join the association and to pay assessments imposed by the group. Those 2004 changes were approved by 30 affirmative votes, said the court opinion.
The 2004 restrictions were revised and recorded in 2005, then allowing liens against owners who failed to pay their assessments or violated the restrictions.
The court decision issued Wednesday concluded a 2004 attempt to amend the earlier restrictions was void because a majority of property owners did not agree to the changes. Noting that only 30 people signed it, the judge found there were 268 lots at Lake Suzy, so at least 135 owners would have to approve the changes.
Although the order said the 2004 restrictions were "void and of no legal effect," it also said the original limitations dating from 1973 and amended in 1999 "remain in full force and legal effect."
The court found the lien the association tried to impose against one owner was void.
Another issue was whether the marketable record title act extinguished the original restrictions. The court found it did not.
Attorneys for both the property owners association and the plaintiff owners declined to comment on the opinion because, as of Thursday, they had not received a copy yet.
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