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Interchange Drive LLC v. Nusloch

The plaintiff lot owners had a right and easement of use, access and enjoyment to the subdivision's common areas and designated Active Recreation Area, because the property's initial conveyance pursuant to a deed under power of sale was made subject to the covenants at issue and the grantee of the subsequent conveyance could take no greater title than that held by the grantor.

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This case involves a dispute between subdivision lot owners and the purchaser of certain subdivision property. The lot owners sought access to common areas and a recreation area within the subdivision, and the purchaser denied such access, taking the position that it was entitled to use that property for its own purposes. The trial court ruled in favor of the lot owners, allowing them rights to use, access and enjoy the subdivision’s common areas and recreation area as set forth on the subdivision plat and in the subdivision’s restrictive covenants.1 The purchaser, Interchange Drive, LLC “Interchange”, appeals the trial court’s ruling in favor of the lot owners. Because the subdivision property at issue remained subject to the subdivision’s restrictive covenants when Interchange purchased it, we affirm. Interchange purchased the subdivision property at issue in 2009. To resolve the dispute in this case, however, we must review a series of real estate transactions between numerous entities, beginning in 2005.

On July 7, 2005, Genesis Real Estate Group, LLC “Genesis” purchased two parcels of land from Erling Speer by warranty deed. That same day, Genesis executed a deed to secure debt and assignment of rents the “security deed”, conveying those parcels to Wachovia Bank, National Association “Wachovia”, as security for a loan. The security deed was recorded on July 13, 2005.

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