WHEN DID IT ALL START, AND HOW DID WE GET TO NOW?
The 1993 covenant states that all FH properties from that point on would carry an obligation to pay an annual fee for the maintenance of the Fairfield Harbour amenities. (Properties owned before 1993 were excluded from this obligation, and paid fees for the use of only those amenities they used.) When MidSouth bought the Fairfield Harbour amenities from the Harbour Recreation Club, they bought with the understanding that they could continue to assess, and collect, amenities fees, although the existing fees could not be raised for a period of five years. For awhile, things moved smoothly.
When MidSouth decided that the Timeshare-assessed amenities fees should be higher – much higher, in fact – the Timeshares sued MidSouth. Their argument was that the covenant was not a “real” covenant, but a “personal” covenant, and did not “run with the land” – and, so they were not obligated to pay the fees. The court agreed.
In the meantime, in the opinion of many property owners, MidSouth had not been living up to its share of the bargain. The clubhouse ceiling was in disrepair, golf course maintenance was sporadic, at best, tennis courts needed work, as did the Anchor Pool. MidSouth closed the Shoreline golf course, claiming insufficient funds, and it was clear the Harbour Pointe course was being neglected. It was generally believed that the significant amenities fees MidSouth was collecting from property owners were not being applied to amenities maintenance. With the Timeshare decision, many property owners decided to stop paying their annual fees.
In October, 2009, MidSouth closed the Harbour Pointe course, leaving those with annual paid-up memberships unrefunded – and angry. Neighboring golf courses came calling, and by the time MidSouth reopened the Harbour Pointe course in 2010, with an offer of “one free month” to compensate for the two months members had lost, most golfers had joined elsewhere. MidSouth continues to call this a boycott, rather than the result of the course closing.
In 2012, MidSouth contracted with Billy Casper Golf, hiring them to manage the Harbour Pointe Golf Course, and golfers returned to find weedy, overgrown fairways and mold-infested greens. Under Billy Casper management, the course has steadily improved, but only to what is possible within their constrained budget. Gradually, membership and outside play continue to increase. The abandoned Shoreline course is being mowed, but the abandoned pool, clubhouse, and cart shed continue to be red flags for potential buyers. (On the positive side, in March, 2016, MidSouth renewed its contract with Billy Casper, for another three years.)
In 2015, MidSouth declared bankruptcy and sought protection under Chapter 11. Part of the plan it submitted to the court was to sell to the highest bidder the 385 acres of land it owns within Fairfield Harbour, and, with it, the amenities it claims it can no longer pay to maintain without amenities fees. It claims it cannot sell the property while the covenant requiring maintenance by the buyer is attached to the land. This was the issue brought before Judge Humrickhouse’s court in 2015.