Wheeler v. Southport Seven Planned Unit Development
2012 ND 201
| N.D. | 2012Background
- Wheeler purchased property within Southport PUD Project I in 2005 and signed a deed acknowledging Covenants running with the land.
- The amended declaration (recorded 1997) authorizes the Southport association to levy annual and special assessments for maintenance of common areas and to bill all lot owners.
- Southport’s board or association undertook snow removal and lawn care in Southport; Wheeler objected to these services and stopped paying some assessments.
- Southport filed liens and Wheeler paid some funds into escrow; in 2009 Wheeler sued to challenge assessments, while Southport sought to recover unpaid assessments.
- The district court granted partial summary judgment in favor of Southport, held a bench trial on the accord and satisfaction issue, and awarded Southport costs; Wheeler appealed the judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to assess for non-common areas | Wheeler argues assessments may only cover common areas, not non-common maintenance. | Southport contends the amended declaration grants authority to maintain and assess non-common areas as part of project upkeep. | Southport authority to assess non-common areas affirmed. |
| Existence and scope of the contract (declaration) | Wheeler claims the declaration is a contract of adhesion with oppressive terms. | Southport asserts covenants running with the land binding Wheeler and enforceable as contracts. | Declaration construed as valid covenants running with the land; Wheeler bound by terms. |
| Accord and satisfaction (2007 payment) | Wheeler argues the 2007 payment extinguished the debt under accord and satisfaction. | Southport contends no complete extinction occurred; it was only a partial payment for that year’s snow removal. | Courts’ finding of partial credit and ongoing obligation affirmed; no extinguishment. |
| Recovery of costs and post-judgment relief | Wheeler challenges the awarding of costs and disbursements to Southport. | Southport prevailed on summary judgment and trial; costs properly awarded. | District court’s cost ruling affirmed; post-judgment relief denied. |
Key Cases Cited
- Hill v. Lindner, 2009 ND 132 (ND 2009) (restrictive covenants and interpretation of land-use covenants; contract-like effect)
- Allen v. Minot Amusement Corp., 312 N.W.2d 698 (ND 1981) (enforcement of covenants running with the land)
- Griffin v. Tall Timbers Dev., Inc., 681 So.2d 546 (Miss. 1996) (covenants running with the land enforcement)
- Peterson v. Ramsey Cnty., 563 N.W.2d 103 (ND 1997) (accord and satisfaction principles apply to judgments)
- Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005) (PUDs resemble covenants; enforcement under contract-like terms)
- Richards v. Abbottsford Homeowners Ass’n, 809 S.W.2d 193 (Tenn. Ct. App. 1990) (covenants running with the land bind future owners)