                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                        Assigned on Briefs December 4, 2012

     THE PRESERVE AT FORREST CROSSING TOWNHOME
ASSOCIATION, INC. v. MARSHA DEVAUGHN and KEENE PATTERSON

               Appeal from the Chancery Court for Williamson County
                      No. 39203   James G. Martin, III, Judge


               No. M2011-02755-COA-R3-CV - Filed January 30, 2013


A townhome owner and her tenant challenge an amendment adopted by the owner’s
townhome association prohibiting the owner from leasing her unit to a third party. The
owner purchased her unit before there were any restrictions on leasing individual units. The
amendment was adopted in accordance with the Horizontal Property Act and in accordance
with the documents governing the units where she lives. The trial court granted the
association’s motion for summary judgment enjoining the owner from renting her townhome
to a third party and requiring the tenant to vacate the unit. On appeal we conclude the
amendment is enforceable and affirm the trial court’s judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.

Andrew Maloney, Nashville, Tennessee, for the appellants, Marsha DeVaughn and Keene
Patterson.

Keith H. Solomon, Brentwood, Tennessee, for the appellee, The Preserve at Forrest Crossing
Townhome Association, Inc.

                                        OPINION

      Marsha DeVaughn purchased a townhouse at The Preserve at Forrest Crossing
Townhomes (The “Preserve”) in September 2004. When she purchased her unit, the
administration and management of The Preserve was governed by bylaws set forth in the
“Declaration of Covenants and Restrictions for The Preserve at Forrest Crossing, Williamson
County, Tennessee” (the “Declaration”), which was recorded at the Williamson County
Register of Deeds. The Declaration defines the individual parcels of real property as “Private
Elements.” When Ms. DeVaughn purchased her townhome in 2004 the Declaration did not
prohibit her from leasing her unit to third parties. The Declaration contained a section titled
“Amendment,” however, that stated:

              The terms, provisions, covenants and restrictions of this Declaration
       may be amended upon the approval of such amendment by: (a) those members
       of the Association who own, in the aggregate, no fewer than sixty-seven
       percent (67%) of the Private Elements not owned by the Declarant1 , and (b) the
       Declarant, if the Declarant shall then own any Private Element or any other
       portion of the Overall Property. . . .

                                             .....

              Each person who shall own any Private Element, by acceptance of a
       deed or other conveyance thereto, and by acceptance of a deed or other
       conveyance thereto, and by acceptance of such ownership, and by taking
       record title thereto, and each holder of a Mortgage upon any portion of any
       Private Element, by acceptance of such Mortgage, thereby agrees that the
       terms, provisions, covenants and restrictions of this Declaration may be
       amended as provided in this Article X.

        The Declaration was amended in May 2006, two years after Ms. DeVaughn purchased
her unit. A section was added to Article VII for the stated purpose of promoting “the orderly,
attractive and lasting integrity of the community and [to] enhance the value of the property
compromising The Preserve.” The new section was called “Restriction on Leasing” and
provided:

       The purchase of property for the purpose of offering it for residential lease is
       strictly prohibited. Selling property under a lease/purchase agreement or
       installment deed is prohibited. It is the intent of the homeowners that property
       in The Preserve be owner occupied. The owner of a Private Element may not
       lease the property to tenants unless he or she has first secured the written
       authorization of the Board of Directors. Property currently being leased at the
       time of recordation of this Amendment shall be grandfathered in such that the
       current owner may continue to lease the premises. But no future owner of the
       property may lease-out the premises.


       1
         The Declarant is defined as Pulte Homes Tennessee Limited Partnership, a Nevada limited
partnership.

                                              -2-
      The Declaration was amended again two years later, in May 2008. The new section
was called “Leasing Prohibited” and stated in pertinent part:

       Effective upon recordation of this Amendment with the Register’s Office for
       Williamson County, Tennessee, rental or leasing of Private Elements is
       prohibited; provided however, that all leases in effect on the date of
       recordation of this Amendment shall be unaffected hereby until the expiration
       of the current term of each such lease (or in the case of periodic tenancies, the
       expiration of the next period). Any inconsistency between this Amendment,
       on one hand, and any other provisions of the Declaration not amended hereby,
       any previous amendment to the Declaration or the Bylaws of the Association,
       on the other (including without limitation references to “tenants,” “leases,” or
       other terms related to leasing) shall be resolved in favor of this Amendment.

       Ms. DeVaughn rented her townhouse to Keene Patterson beginning in January 2010.
The Preserve notified both Ms. DeVaughn and Mr. Patterson that they were in violation of
the Declaration. Despite The Preserve’s request to Ms. DeVaughn and Mr. Patterson that
Mr. Patterson vacate Ms. DeVaughn’s townhouse, Mr. Patterson continued residing as a
tenant at The Preserve.

       The Preserve at Forrest Crossing Townhome Association, Inc. (the “Association”),
which was the association representing the Preserve, filed a complaint against Ms. DeVaughn
and Mr. Patterson in December 2010 seeking, inter alia, a mandatory injunction enjoining
the continued rental by Mr. Patterson of Ms. DeVaughn’s townhome in violation of the
Declaration of Covenants and Restrictions. The Association filed a motion for summary
judgment in September 2011. The trial court granted the Association’s motion following a
hearing and included the following findings in its Order:

       5.      Defendant, Marsha DeVaughn, purchased the townhome at 417
       Chatsworth Court, Franklin, Tennessee located in Williamson County,
       Tennessee on September 17, 2004. Defendant, Keene Patterson, holds a
       leasehold interest in the townhome which he obtained on or about in January
       2010 by written contract with Defendant DeVaughn, which was a one year
       lease. The lease expired in July, 2011 and Defendant Patterson now leases the
       property from Defendant DeVaughn as a month to month tenant.

       6.    When Defendant Marsha DeVaughn purchased her townhome, she
       consented to having restrictions placed upon the use and improvement of her
       property for the benefit of the townhome development as a whole. Ass’n of
       Owners of Regency Park Condominiums v. Thomasson, 878 S.W.2d 560

                                              -3-
(Tenn. Ct. App. 1994), McElveen-Hunter v. Fountain Manor Ass’n, 386
S.E.2d 435 (N.C. App. 1989).

7.     Condominium and townhome owners live in close proximity and use
facilities in common and therefore must give up a certain degree of freedom
of choice which property owners might otherwise enjoy in separate, privately
owned property. Id. (citing Hidden Harbour Estates, Inc. v. Norman, 309
So.2d 180, 182 (Fla. Dist. Ct. App. 1975)).

8.     Defendant Marsha DeVaughn purchased her property subject to the
limitations set forth in the Master Deed and By-laws. The documents clearly
state that they are subject to amendment by proper procedure. As such,
Defendant Marsha DeVaughn could have no vested right in the status quo and
no expectation that these governing documents are static. It is undisputed that
the amendment prohibiting rental or lease of the units was adopted by proper
procedure.

9.    The leasing restriction reasonably relates to the health, happiness and
peace of mind of the owners of The Preserve at Forrest Crossing as a whole
and the welfare of the townhome community outweighs an individual owner’s
interest in profit. Ass’n of Owners of Regency Park Condominiums v.
Thomasson, 878 S.W.3d 560 (Tenn. Ct. App. 1994).

10.    The Court finds that the Motion for Summary Judgment should be
granted to Plaintiff. It is therefore ORDERED, ADJUDGED and
DECREED

       a. that the Amendment to the Master Deed and By-laws dated May
8, 2008 and recorded in the Williamson County Register of Deeds Office in
Book 4571, Page 173 is binding and enforceable to prohibit the rental of
Defendant Marsha DeVaughn’s property in The Preserve at Forrest Crossing;

       b. that the Amendment to the Master Deed and By-laws dated May
8, 2008 and recorded in the Williamson County Register of Deeds Office in
Book 4571, Page 173 is reasonable;

       c.   that a permanent injunction is GRANTED against Defendant
Marsha DeVaughn prohibiting her from leasing or renting her townhome
located at 417 Chatsworth Court, Franklin, Tennessee in violation of the
Declaration of Covenants and Restrictions for The Preserve at Forrest

                                      -4-
        Crossing, along with all Amendments of said Declaration;

               d.    that Defendant Keene Patterson shall vacate the premises on or
        before sixty (60) days from the date this Order is entered . . . .2

       Ms. DeVaughn and Mr. Patterson appeal the trial court’s judgment, arguing that the
retroactive application of the amendment prohibiting the leasing of properties as against Ms.
DeVaughn is arbitrary and capricious as applied to them and that it is also unreasonable.

                                               A NALYSIS

        A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 84 (Tenn.
2008); Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the
summary judgment decision as a question of law. Id. Accordingly, this court must review
the record de novo and make a fresh determination of whether the requirements of Tenn. R.
Civ. P. 56 have been met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004);
Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). Those requirements are that
the filings supporting the motion show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Blair, 130
S.W.3d at 764.

       The moving party has the burden of demonstrating it is entitled to judgment as a
matter of law and that there are no material facts in dispute. Martin, 271 S.W.3d at 83;
McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998). If the party
seeking summary judgment makes a properly supported motion, the burden shifts to the
nonmoving party to set forth specific facts establishing the existence of a genuine issue of
material fact. Martin, 271 S.W.3d at 84; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5
(Tenn. 2008); Staples v. CBL & Associates, 15 S.W.3d 83, 86 (Tenn. 2000) (citing Byrd v.
Hall, 847 S.W.2d, 208, 215 (Tenn. 1993)).

       Ms. DeVaughn and Mr. Keene do not contend there are disputed issues of fact
precluding summary judgment. Instead, they argue the Association was not entitled to
summary judgment because the amendment prohibiting the leasing of individual townhomes
was arbitrary and capricious as applied to Ms. DeVaughn since there was no prohibition on
leasing units in The Preserve when she purchased her unit in 2004.



        2
         The trial court also granted the Association damages for past due association fees and assessments
as well as attorneys’ fees. The court’s award of damages and attorneys’ fees are not at issue on appeal.

                                                   -5-
       The Tennessee Horizontal Property Act applies to planned unit developments such as
The Preserve.3 See Tenn. Code Ann. § 66-27-101 et seq. The administration of planned unit
developments is governed by bylaws, which are recorded along with the master deed. Tenn.
Code Ann. § 66-27-111. Where the property includes private elements, the declaration shall
include the covenants, conditions, restrictions, and bylaws governing the property. Tenn.
Code Ann. § 66-27-102(10). When there are multiple owners of the private elements, as
here, the owners of two thirds of the private elements may modify the bylaws. No
modification is operative until it is recorded in the same office and in the same manner as
was the master deed or lease or plat and original bylaws for the planned unit development.
Tenn. Code Ann. § 66-27-112.

        The record indicates that owners of at least 67% of the townhomes at the Preserve
voted to amend the Declaration in May 2008 to prohibit the leasing of individual units and
that the amendment was duly recorded with the Williamson County Register of Deeds on
May 29, 2008. Moreover, the Association filed affidavits from the owners of thirty-nine
different townhomes in support of its motion for summary judgment. Each of the owners
testified as follows:

              3. As a resident owner, I prefer all units in The Preserve at Forrest
        Crossing to be owner occupied; I have a long term financial stake in this
        community and I work hard to maintain my home and the common areas,
        which will hopefully result in a higher long-term market value for all units
        here.

                4. I value the sense of community that comes with a stable
        neighborhood and fear that renters, if this leasing restriction is not enforced,
        will interfere with that sense of community.

               5. I would like the restriction against leasing any townhomes in The
        Preserve at Forrest Crossing to be upheld and enforced.

      As the trial court noted, the Court of Appeals has found that “[w]hen a person
purchases a condominium unit they consent to having restrictions placed upon the use and
improvement of their property for the benefit of the condominium as a whole.” Ass’n of


        3
          We note that condominiums created after January 1, 2009, are governed by the Tennessee
Condominium Act of 2008, Tenn. Code Ann. § 66-27-201 et seq. That statute requires a declaration to
include, inter alia, any restrictions on the use, occupancy, and alienation of the units. Tenn. Code Ann. §66-
27-305((a)(11). The Preserve was created prior to 2009 and is therefore governed by the Horizontal Property
Act, Tenn. Code Ann. § 66-27-101 et seq.

                                                     -6-
Owners of Regency Park Condominiums v. Thomasson, 878 S.W.2d 560, 563 (Tenn. Ct.
App. 1994). The unit owner gives up a certain amount of freedom she would otherwise
enjoy if living in a house located on a piece of separate, privately owned property. Id. (citing
Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 182 (Fla. Dist. Ct. App. 1975)).
The restrictions must not be arbitrary or capricious. They must bear a relationship to the
health, happiness, and enjoyment of life of the unit owners as a whole. Thomasson, 878
S.W.2d at 563 (citing Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. Dist.
Ct. App. 1981)).

       Use restrictions are an inherent part of any common interest development and
       are crucial to the stable, planned environment of any shared arrangement. The
       purchaser of a condominium unit consents to restrictions placed on the use and
       improvement of the property for the benefit of the condominium as a whole,
       although no owner is assumed to consent to arbitrary and capricious
       restrictions which achieve no positive benefits. . . .

15B A M. J UR. 2 D Condominiums, Etc. § 37 (2012).

        We have not seen a case where a court in Tennessee has been faced with the same
facts we have here. However, courts in other jurisdictions that have considered this issue
have determined that a duly adopted amendment restricting the rental of individual units is
binding on a unit holder who purchased her unit before the amendment became effective.
In Woodside Village Condominium Ass’n, Inc. v. Jahren, 806 So.2d 452 (Fla. 2002), for
example, the condominium association amended its declaration to limit the leasing of units
to a 9-month term in any 12-month period. Id. at 454. The amendment was adopted in
response to some owners’ concerns that if units were not owner occupied, the other
residents’ quality of life and the market value of the units would be negatively impacted. Id.
The unit owners who opposed the amendment asserted the restriction was unreasonable,
arbitrary, and capricious, and deprived them of lawful uses which were permissible when
they purchased their units. Id.

        The trial court in Woodside Village invalidated the amendment, but the lower court
was reversed on appeal. The Florida Supreme Court began its analysis by recognizing that
condominium living is unique and involves a higher number of restrictions on individual unit
owners than other property owners experience. Id. at 456. As a result, “increased controls
and limitations upon the rights of unit owners to transfer their property are necessary
concomitants of condominium living.” Id. (quoting Aquarian Found., Inc. v. Sholom House,
Inc., 448 So.2d 1166, 1167 (Fla. Dist. Ct. App. 1984)).




                                              -7-
         When the Woodside Village defendants purchased their units, the condominium’s
declaration provided that it could be amended and set forth the procedure for doing so. 806
So.2d at 460. The Woodside Village court explained that restrictions contained in a
condominium’s declaration “should be clothed with a very strong presumption of validity
when challenged” because unit holders purchase their individual unit knowing that
restrictions may be imposed. 806 So.2d at 457 (citing Hidden Harbour Estates, Inc. v.
Basso, 393 So.2d at 639-40). Thus, the Woodside Village court found, the defendants were
“on notice that the unique form of ownership they acquired when they purchased their units
. . . was subject to change through the amendment process, and that they would be bound by
properly adopted amendments.” Id. at 461.

       Acknowledging that the amendment restricting leasing was intended to promote
owner occupancy, which the court found to be consistent with condominium living, the
Woodside Village court held the amendment was valid and enforceable against the
defendants even though the restrictive amendment was not adopted until after the defendants
purchased their units. Id. at 462. The Woodside Village court also relied upon a lower
court’s holding in Flagler Federal Savings & Loan Ass’n v. Crestview Towers Condominium
Ass’n, 595 So.2d 198 (Fla. Dist. Ct. App. 1992), to support its conclusion. The Flagler court
held that an amendment to a declaration prohibiting unit holders from leasing their units for
any period of time applied to a unit holder which acquired its unit prior to the amendment
because every owner purchases his or her unit knowing of and accepting the restrictions to
be imposed. Id. at 200.

        An appellate decision from Illinois involves similar facts. In Apple II Condominium
Ass’n v. Worth Bank & Trust Co., the Appeals Court of Illinois upheld the validity of a
declaration amendment that restricted leasing a unit more than once during a person or
entity’s ownership, with no lease exceeding one year. 659 N.E.2d 95, 97 (Ill. App. Ct. 1995).
The unit owners in Apple II purchased their unit before the condominium declaration
contained any restrictions on leasing and argued the application of the amendment to them
constituted an ex post facto modification of their contractual rights made without any
consideration. Id. at 96. The appellate court disagreed and found “neither the fact that there
were no restrictions on the property when they Harmons purchased their unit nor the fact that
the Harmons purchased the property for investment purposes is relevant” and that
“condominium owners do not have vested rights in the status quo ante.” Id. at 97.

        Courts in other jurisdictions have similarly held that a duly adopted amendment
restricting either leasing or occupancy is binding on unit owners who purchased their units
before the amendment became effective. See, e.g., McElveen-Hunter v. Fountain Manor
Ass’n, Inc., 386 S.E.2d 435, 436 (N.C. Ct. App. 1989) (court held occupancy and leasing
restrictions in condominium amendment may bind unit owners who purchased their units

                                             -8-
before amendment was adopted); Hill v. Fontaine Condominium Ass’n, Inc., 334 S.E.2d 690,
690-91 (Ga. 1985) (court upheld condominium declaration amendment limiting permanent
residence to people over 16 years of age, requiring couple who owned unit before
amendment was adopted to move after baby was born); Ritchey v. Villa Nueva Condominium
Ass’n, 146 Cal. Rptr. 695, 700-01 (1978) (court upheld bylaw amendment enacted after
plaintiff purchased unit restricting occupancy to individuals aged 18 or over).

       Ms. DeVaughn and Mr. Patterson rely on Graham v. Board of Directors of Riveredge
Village Condominium Ass’n, 1994 WL 597009 (Tenn. Ct. App. 1994), to support their
argument that the retroactive application of the leasing restriction is arbitrary and capricious.
Graham does not help Ms. DeVaughn and Mr. Patterson’s cause, however, because the
resolution at issue in Graham regarding the leasing of individual units was not properly
promulgated by the Board of Directors and was therefore unenforceable for that reason. The
Board’s power was limited by the condominium documents to issues regarding the common
property. Id. at *1-3. In addition, the master deed in Graham included a provision that no
amendment would discriminate against any unit owner unless the unit owner so affected
consented to the amendment. The restriction thus would not have been enforceable without
the consent of all the unit owners even if the Board of Directors had had the authority to
enact regulations regarding individual units. Id. at *4.4

               Many community association actions are designed to promote the
        residential character of the community. Associations may prohibit rentals
        altogether, prohibit short-term rentals, or provide benefits to resident owners
        not equally available to non-resident owners. At first glance, actions like these
        appear redistributive in nature: they benefit the majority of resident owners at
        the expense of the minority of non-resident owners. On closer examination,
        however, these restrictions are far less troublesome, and generally should be
        sustained.

                A number of justifications underlie the common preference for resident
        owners. Resident owners may prefer other resident owners on the theory that,
        because residents have a long-term financial stake in the community, they are
        likely to work harder at maintaining their units and common areas, which will
        result in higher long-term market value for all units. Indeed, lenders


        4
         The Graham court stated in dicta that the proposed limitations on renting units was unreasonable
because the condominiums are located in a tourist area where families often travel to spend short-term
holidays. Graham, 1994 WL 597009, at *4. The record here contains no evidence that The Preserve is
located in a tourist area or that owners of units at The Preserve purchased their units for the purpose of
renting them out to tourists.

                                                   -9-
       apparently share this view, because they often condition financing of
       associations on the maintenance of a high percentage of resident owners.
       Beyond market value, resident owners may value the sense of community that
       comes with a stable neighborhood and may fear that renters -- especially
       short-term renters -- will interfere with that sense of community.

Stewart E. Sterk, Minority Protection in Residential Private Governments, 77 B.U. L.Rev.
273, 322-23 (1997); see Shorewood West Condominium Ass’n v. Sadri, 992 P.2d 1008, 1010
(Wash. 2000) (condominium owners adopted leasing restrictions because they feared their
units might lose value if some units were occupied by non-owners).

        Ms. DeVaughn contends the reason she is leasing her townhome is to be able to pay
her mortgage and that a foreclosure is more undesirable to fellow townhome owners than a
renter. Ms. DeVaughn may be right. However, that decision is not for the court to make, but
is for the other unit owners to determine in accordance with the statutory scheme and the
documents governing The Preserve.

        We conclude the prohibition against renting units at The Preserve is not arbitrary or
capricious as applied to Ms. DeVaughn. When she purchased her townhome in 2004 the
Declaration clearly provided that it could be amended by a vote of 67% and that Ms.
DeVaughn would be bound thereby. Despite Ms. DeVaughn and Mr. Patterson’s suggestion
to the contrary, The Preserve’s Declaration amendment prohibiting the rental of individual
units is consistent with the Horizontal Property Act and with the governing documents of The
Preserve; it is therefore not against public policy. See Thomasson, 878 S.W.2d at 566 (public
policy of Tennessee with respect to condominiums is set forth in the Horizontal Property
Act).

                                        C ONCLUSION

        We affirm the trial court’s judgment in all respects. Costs of this appeal are assessed
against the appellants, Marsha DeVaughn and Keene Patterson, for which execution shall
issue if necessary.


                                                          ____________________________
                                                          PATRICIA J. COTTRELL, JUDGE




                                             -10-
