F Family South, LLC v. Property Owners Association of Ono Island, Inc., [Ms. SC-2023-0341, May 17, 2024] __ So. 3d __ (Ala. 2024). The Court (Shaw, J.; Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur) affirms in part and reverses in part the Baldwin County Circuit Court’s judgment.
This matter concerns a dispute arising from the planned construction of a boat shelter. F Family South, LLC seeks to build on an “intertidal mound.” The property owner’s association contends that the construction cannot proceed and argues that (a) the intertidal mound was the subject of an improper tax sale in 1995, and (b) the intertidal mound was subject to restrictive covenants prohibiting the construction.
First, regarding the legality of the 1995 tax sale, the Court finds that any challenge to the sale was subject to Ala. Code § 40-10-83’s 20-year statutory repose period. Ms. *33. Because this action was instituted long after 2015, when the 20-year period to challenge the sale expired, the Court reverses the portion of the trial court’s decision voiding the tax sale and subsequently issued deeds. Ms. *34.
Second, the Court affirms the trial court’s judgment enforcing the restrictive covenants. The Court notes that “[d]espite the disfavor with which Alabama law views implied restrictive covenants, this Court has enforced implied restrictive covenants under certain situations.” Ms. *35. The Court provides a detailed overview of the situations under which restrictive covenants may be recognized by implication. Ms. **44-48. Based on the facts in the record, the Court concludes that it was not unlawful or unreasonable to enforce the restrictive covenants. Ms. **49-50.