Quote:
Posted By BobD4 on 06/27/2016 8:33 PM
2 EricH13 cites from third last para of Mendelson v Bornblum 2005 Tennessee Appeal Court
http://law.justia.com/cases/tennessee/court-of-appeals/2005/w2004-02549-coa-r3-cv.html was cited by NPS Penn at another Tennessee topic http://www.tncourts.gov/sites/default/files/OPINIONS/TCA/PDF/053/MendelsonLarryNOPN.pdf
The rest of the extract is " . . . However, where a buyer of land has notice that the property is covered by restrictive covenants and that other lot owners may amend those covenants, the buyer may be bound by amendments made subsequent to the acquisition of title. Id. (citing 26 C.J.S. Deeds §§ 167(3), 168, 169 (1956)). ..."
The full paragraph from the Mendelson v. Bornblum court opinion, with both Eric's and Bob's quotations seems to me to favor Eric's claim:
~~~From Mendelson v. Bornblum~~~
Finally, we turn to the May 6, 2003 Amendments and their purported repeal and rescission
of the Lot 5 Amendment. The Tennessee Supreme Court has stated that “no set of covenants should
be given any general retroactive effect.” E. Sevier County Util. Dist. v. Wachovia Bank & Trust Co.,570 S.W.2d 850, 853 (Tenn. 1978); see also Land Developers, Inc. v. Maxwell, 537 S.W.2d 904, 913 (Tenn. 1976); Graham v. Edmondson, No. 01A01-9809-CH-00482, 1999 WL 476466, at *4 (Tenn.
Ct. App. July 12, 1999). Generally, “the date when title [is] transferred [is] the critical point after which amendments [can] not be enforced against the purchaser.” Conn v. Powell, 1984 WL 588785,at *3 (Tenn. Ct. App. Nov. 5, 1984). However, where a buyer of land has notice that the property is covered by restrictive covenants and that other lot owners may amend those covenants, the buyer may be bound by amendments made subsequent to the acquisition of title. Id. (citing 26 C.J.S. Deeds §§ 167(3), 168, 169 (1956)). Notwithstanding that principle, “a provision that any of the restrictions imposed may be modified or amended does not authorize any new or additional
restrictions to be imposed, but only authorizes existing restrictions to be made less harsh.” Id.
(quoting 26 C.J.S. Deeds § 168 (1956)).
~~~
C.J.S. is the acronym for Corpus Juris Secundum, an encyclopedia of law (thanks, wikipedia).
To me, the Mendelson opinion is consistent with the notion embraced (with much citation) by the courts that when a conflict or ambiguity arises within HOA legal documents, then the conflict will be resolved in favor of liberties and the enjoyment of property. Also, naturally, ambiguities do arise from time to time in governing documents and contracts. From general reading on how this plays out with HOA documents ad HOA Declarants, I understand the ambiguity is resolved against the writer of the governing document or contract. Eric presents us with a 2006 warranty deed that has an explicit restriction on a certain matter, and then a clause within the warranty deed that says certain covenants apply and may be amended. The Declarant now in 2015 is saying, "We changed our mind. Under the terms of the warranty deed, we can amend the covenants. We hereby amend the covenants to remove the original, explicit warranty deed restriction and make this restriction harsher." This seems to me to be baloney. The Declarant wants to have its cake and eat it too. I do not think a court will accept the Declarant's argument. I recall other court cases where I live where a Declarant tried to run roughshod over HOA members, using ambiguous covenant provisions, truly written in an effort to give the Declarant thorough control of the grounds with the covenants be damned, with the provisions saying things like, "the rule is xyz unless the Declarant changes its mind." My recollection is the courts told the Declarant to stuff it. Ambiguous phrasing may not be used to the advantage of the writer of the contract.