BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER
DAN LEE, JUSTICE, FOR THE COURT:
This is an appeal from the Chancery Court of DeSoto County. The appellants filed their complaint on May 15, 1980, seeking damages against the Bridgetown Community Association.
On May 21, 1981, the complaint was amended to include an allegation showing that the Association's agreement to amend protective covenants was recorded improperly. On September 14, 1981, the appellants and the appellees jointly filed stipulations for determination of threshhold issues of liability. Based upon these stipulations, the pleadings, and the supporting briefs filed by the parties, the court issued its opinion on April 19, 1984. In that opinion, the court dismissed the complaint with prejudice.
Glen Edwards and James H. Flaherty, the appellants here and the plaintiffs below, have appealed, and assign the following as error:
1. The Court erred in concluding that Edwards and Flaherty are required to be members of a homeowners association and that the owners and their lots are liable for dues and assessments made against them by the homeowners association because: neither dues or assessments nor the homeowners' association were provided for in the restrictive covenants existing in 1972 and 1973 when their lots were purchased; and because Edwards and Flaherty did not agree to the purported change in the covenants in 1975 providing for the homeowners association and suggesting dues or assessments or otherwise agree to become members of the homeowners association or to charge their lots for dues or assessments.
2. The Court erred in concluding that dues and assessments of a homeowners association established in 1975 were superior to purchase money mortgages given in 1972 and 1973, where no provisions for a homeowners association or dues or assessments against the lots existed in the restrictive covenants of the subdivision at the time the mortgages were given.
3. The Court erred in dismissing the bill of complaint with prejudice.
On July 19, 1972, James Flaherty bought a lot in Lakewood Estates, and Glen Edwards bought his lot on June 8, 1973. The lots were subject to 21 covenants, which had been recorded, and which Edwards and Flaherty had notice of. The 21st covenant read as follows:
These protective covenants may be amended by a written agreement duly executed by party or parties owning 65% of the land and property subject to the restrictions hereto set out at the time said amendment, modification or revocation is sought. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of thirty years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive ten year periods unless an instrument signed by the owner or owners of the majority of the above described lots has been recorded in the public records agreeing to amend, modify or revoke said covenants in whole or in part.
Lakewood Subdivision, as the name implies, encompassed an area containing several lakes and common areas. The lot owners were also subject to the following covenants, Covenants No. 14 and 15:
14. All lakefront lots shall have riparian rights from the rear platted lot line to the lower water line of the lake or lakes.
15. The property owners in all sections of Lakewood Estates and their guests shall be entitled to the use and enjoyment of the lake or lakes and all other recreational facilities in all sections and/or areas of Lakewood Estates.
On September 17, 1973, Lakewood Estates Association was incorporated under the laws of the State of Mississippi, for the purpose of" Holding, owning, managing, improving and supervising common property of a residential property owners association. "
In July, 1975, Bridgetown, Inc., the successor of
Lakewood Estates Association, filed an agreement to amend the protective covenants. This agreement was purportedly signed by sixty-five percent of the property owners of the subdivision. It contained extensive modifications and additions to the previous restrictive covenants, including, but not limited to: A provision requiring all record owners of property in the subdivision to be members; a provision granting to every member an easement to the common properties; a provision requiring maintenance assessments; a provision creating an architectural control committee, for the purpose of exterior maintenance of lots and houses, review of proposed construction on houses or lots, submission of plans for prevention of lake erosion, and ...