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2012-UP-217 - Forest Beach Owner's Association v. Austin

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Forest Beach Owner's Association, Inc., and Trevor Howard, Respondents,

v.

Carolyn S. Austin, formerly known as Carolyn S. Bair, Appellant.


Appeal From Beaufort County
Thomas Kemmerlin, Jr., Special Referee


Unpublished Opinion No. 2012-UP-217
Heard March 13, 2012 – Filed April 4, 2012


AFFIRMED


Robert E. Stepp, of Columbia, and Thomas A. Pendarvis, of Beaufort, for Appellant.

Russell P. Patterson, of Hilton Head Island, for Respondents.

PER CURIAM: Forest Beach Owner's Association brought suit against Carolyn S. Austin to assert its claim of ownership over real property on Hilton Head Island.  Austin defended claiming superior title by a 1998 default judgment and 2000 quitclaim deed, arguing the statute of limitations barred Forest Beach's claim.  The special referee found Austin intentionally failed to serve Forest Beach with notice of her 1998 quiet title action.  Accordingly, the referee found Forest Beach owned the property and ordered Austin to remove improvements.  We find the referee ruled correctly in all respects, and affirm.  See Investors Title Ins. Co. v. Bair, 2007 WL 6738625 (D.S.C. 2007), aff'd, 296 F. App'x 332 (4th Cir. 2008) ("[T]he court finds Mrs. Austin had actual knowledge that all lot owners in the Hilton Head Subdivisions owned an easement interest in the streets of their respective Subdivisions, including Avocet Street in Subdivision No. 1. . . . [A]lthough Mrs. Austin knew that all Subdivision No. 1 lot owners owned an easement across Avocet Street, she and her husband took possession of the beach access property by hostile and adverse means and then brought an adverse possession lawsuit in which she failed to name parties that she knew had an interest in the property in dispute.").  Additionally, Austin contends the referee erred in ordering her to remove improvements from the property because removal would violate section 48-39-310 of the South Carolina Code (2008).  Section 48-39-310 states: "The destruction of beach or dune vegetation seaward of the setback line is prohibited unless there is no feasible alternative."  We disagree with Austin and affirm the referee's order of removal because Austin did not show that the vegetation she must remove is located on the beach or dune seaward of the setback line.

AFFIRMED.

FEW, C.J., and HUFF and SHORT, JJ., concur.