J-A12014-15



 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
W. LOWELL STARLING AND NANCY        IN THE SUPERIOR COURT OF
STARLING,                                 PENNSYLVANIA

                         Appellants

                    v.

LAKE MEADE PROPERTY OWNERS
ASSOCIATION, INC.,

                         Appellee                    No. 1779 MDA 2014


            Appeal from the Order Entered September 26, 2014
             In the Court of Common Pleas of Adams County
                    Civil Division at No(s): 2010-S-498

BEFORE: BOWES, DUBOW, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                          FILED FEBRUARY 20, 2018

     This case is on remand from our Supreme Court. The parties and this

Court are well acquainted with the pertinent facts as they were extensively

delineated in prior decisions, Starling v. Lake Meade Property Ass’n,

Inc., 121 A.3d 1021 (Pa.Super. 2015), rev’d, 162 A.3d 1021 (Pa. 2017),

which we rely upon for purposes of this appeal.

     Our Supreme Court determined that Appellee Lake Meade Property

Owners Ass’n, Inc. (the “Association”) is the fee simple absolute owner of

Custer Drive, its cul de sac, and any land to the north and west of the cul de

sac not specifically described in the deeds Disputed Property to Appellants

W. Lowell and Nancy Starling (the “Disputed”). It remanded to this Court

solely for us to determine whether any covenants or restrictions precluded
J-A12014-15



the Association’s recreational use of the Disputed Property. Specifically, our

Supreme Court stated, “[O]n remand the Superior Court is free to consider

the question whether the trial court erred in determining that covenants and

restrictions did not preclude the Association’s recreational use of the

Disputed Property.”     Starling v. Lake Meade Property Ass’n, Inc., 121

A.3d at 348.

        In their brief on remand, the Starlings first outline that various pieces

of property in the Lake Meade Subdivision are designated as recreational

areas but that none of the Disputed Property has such a label. Appellants’

Brief on Remand at 12 (“As the Disputed Property is not a lot, and is not

designated as a recreational area, the Association has no unqualified right to

use the Disputed Property as recreational lot.”).       They observe that the

recorded subdivision plan states that lots will be designated as water supply

lots,   commercial    areas   necessary   for   maintenance    and   enjoyment,

recreational areas, lake access areas, and residential lots. They note that,

under this term of the recorded instrument, “recreational areas are lots and

are specifically designated as recreational.” Id. Since none of the Disputed

Property is designated as a recreational lot, the Starlings insist the Disputed

Property cannot be used for recreational purposes.

        We must reject this position.      Our Supreme Court held that the

Association had a fee simple absolute interest in the Disputed Property. Fee

simple absolute ownership constitutes ownership of unlimited duration that


                                       -2-
J-A12014-15



is not subject to limitations or conditions subsequent.         See Wagner v.

Landisville Camp Meeting Ass’n, 24 A.3d 374 (Pa.Super. 2015);

Restatement (First) of Property §§ 14, 15.           Due to the nature of the

Association’s interest in the Disputed Property, it is entitled to conduct any

lawful activity upon it; recreational activities are lawful. In order to restrict

the Association’s use of land, the Starlings must refer us to some express

restriction or covenant, which is clearly required by our Supreme Court’s

directive, that prohibits such use of the land. The Starlings failed to do so.

         The fact that some lots are designated as recreational areas in the

recorded plan does not preclude the conduct of recreational activities on

other lots not containing that title.     Indeed, there is no dispute that the

Starlings can conduct recreational activities on their lot, even though it is not

referred to as a recreational lot. Moreover, the Starlings acknowledge that

the Association has the power to re-designate lots, and it could readily

declare the Disputed Property as recreational. Appellants’ Brief on Remand

at 16.

         The only affirmative restrictive covenant that the Starlings cite states,

“No noxious or offensive trade or activity shall be permitted on any lot, nor

shall anything be done there on which shall be or become, an annoyance or

nuisance to the neighborhood.”        Restrictions and Covenants, Lake Meade

Subdivision, Adams County, Pennsylvania, at paragraph 5.             Recreational

activities are not necessarily noxious, offensive, an annoyance, or a


                                        -3-
J-A12014-15



nuisance, depending upon the conduct of those involved.            Recreational

activities, as noted by the Association, consist of gatherings, cookouts,

sunbathing, playing sports and games, or other similar enjoyments.

      The remainder of the Starlings’ argument on remand relates to their

allegations that criminal activities occurred on the Disputed Property.

Specifically, the Starlings maintained in their complaint that people that

gather on the Disputed Property engage in loud revelry throughout the

night, park on their lots, throw items and urinate on their property, and

shout profane language that the Starlings can hear. The Starlings, in this

appeal, aver that these activities interfere with their quiet enjoyment of their

property and violate the law applicable to homeowner’s associations.

      We first observe that nothing in the trial court’s ruling herein would

allow such activities to continue. It expressly held that, as fee simple owner

of the Disputed Property, the Association could conduct any lawful activity

on it. The activities described by the Starlings cannot be characterized as

lawful, and they fail to distinguish, in their argument, between permitted

recreational use of the Disputed Property and the type of noxious and

criminal behavior that they averred occurred before this action was brought.

However, the Starlings withdrew their nuisance claim in this action, and the

trial court expressly limited the Association’s use of the Disputed Property to




                                     -4-
J-A12014-15



lawful activities.1            The only matter before us is whether there is an

affirmative restriction or covenant that prevents the Association from using

the Disputed Property for recreational activities. Paragraph five prohibits the

conduct of unlawful activities on the property. However, the Association, as

fee simple owner, cannot allow its property to be used for unlawful activities

or for behavior that constitutes a nuisance to the Starlings, as outlined in

paragraph         five,     which      binds    the   Association    as    the   owner   of   lots

encompassed within the Disputed Property. If the Association allows such

activities to continue on its land, the Starlings remain free to institute a

nuisance action and seek relief therein.                      Nevertheless, there is a clear

distinction       between         normal       recreational   activities   and   behavior     that

constitutes a nuisance.               Nothing in the trial court’s decision permits either

the latter type of conduct or any activities that would be considered

prohibited under paragraph five.

        Order affirmed.




____________________________________________
1
   In their brief, the Starlings also suggest that the trial court should not
have ruled that the Association could use the Disputed Property for any
lawful purposes. Our Supreme Court decided that the ruling in question is
correct, and our authority in this remand is solely to determine whether any
affirmative covenants or restrictions prevent recreational use of the Disputed
Property.


                                                   -5-
J-A12014-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/20/2018




                          -6-
