HILTON HEAD

Hilton Head woman continues beachfront property battle

tbarton@islandpacket.comJuly 26, 2012 

Beachgoers emerge from the busy Avocet Street access point from a narrow pathway, at right, that was created when the owner of the adjoining house, at left, fenced it off with a concrete block wall in order to create a gated driveway.

JAY KARR -- STAFF PHOTO

Four different courts have ruled against her. Nevertheless, Hilton Head Island resident Carolyn Austin remains determined to continue to her legal battle over ownership of beachfront property.

After nearly a decade and more than $200,000 she said she has spent on legal fees, Austin, 75, continues to keep the Forest Beach homeowners association from using a strip of land by her house for beach access.

She claims she owns the property and doesn't want it used for beach access. The homeowners association says it owns the property and that Austin does not have a claim to it.

So far, the courts have sided with the homeowners association. Austin has now appealed to the state Supreme Court, which has yet to determine whether it will hear her case.

In 1984, Austin and her husband, now deceased, bought their house at the end of Avocet Street on the south end of the island in a subdivision built by The Hilton Head Co. in the 1950s.

The company declared bankruptcy two years later, and in 1989, Property Research Holdings Inc., owned by Frank Guscio, purchased the company's residual property, including a strand block and streets within the subdivision, according to court records.

Strand blocks are the strips of land between the beach and the nearest property lines. They were set up by the island's original developers to maintain beach access and aesthetics but have been bought up by others through the years.

In 1998, Austin received a default judgment in Beaufort County Court of Common Pleas transferring title of the part of Avocet Street that runs by her house and the strand block in front of her home to her. In 2000, she received a quitclaim deed to the property, court records show.

Unbeknownst to her, Property Research Holdings, the Forest Beach Owners Association and the Town of Hilton Head were involved in litigation in 2001 that resulted in Property Research Holdings giving title to all the subdivision's street extensions, including Avocet, to the owners association.

The association sued Austin in 2004 asserting its ownership of the street. It said Austin wrongfully "took over" the property by installing brick columns, walls, and a large metal gate; and planting trees, shrubs and other plants that prevent homeowners from using Avocet to access the beach, according to court documents filed by association attorney Russell Patterson.

Beaufort County Judge Thomas Kemmerlin Jr. ruled Austin intentionally failed to serve the Forest Beach Owners Association with notice of her 1998 judgment, and he determined the Forest Beach association owned the property. He also ordered Austin to remove the columns, walls, gate, trees, plants and shrubs.

She appealed to the S.C. Court of Appeals, which upheld Kemmerlin's rulings and cited an opinion from U.S. District Court Judge Patrick Duffy in another lawsuit involving Austin. In that suit, Austin was sued by her insurance company after she filed a claim to compensate her for her loss of the land and for fighting the association's lawsuit.

The insurance company contended Austin's policy did not entitle her to coverage for expenses related to title risks she created or knew about.

Judge Duffy agreed.

In his opinion, he states Austin knew all lot owners within the subdivision owned an easement across Avocet and that she and her husband "took possession of the beach access property by hostile and adverse means."

Austin denies the allegation and appealed to the U.S. 4th Circuit Court of Appeals, which affirmed Duffy's order.

Her attorney, Beaufort lawyer Thomas Pendarvis, contends Austin has superior title to the property. He also argues that using the land for beach access is unnecessary, as there is a paved sidewalk to the beach mere feet away beside Sea Crest Villas.

Austin calls the removal a "travesty." She says cutting a path from her lot line to the beach would cause a gully of water to rush toward her property during a storm, undermining her home.

"It's beautiful foliage that's a great protection and should not be cut," Austin said. "It's foolish to think they want to cut down all of these trees and plants to put a path next to one that already exists."

Forest Beach homeowners, however, have no legal right to use the paved walkway, which is not the beach-access path planned by The Hilton Head Co., Patterson wrote in an email to The Island Packet.

"At this point, every court that has reviewed these issues have found that the beach access should remain open, that subject property is not owned or controlled by Ms. (Austin) and that it should be opened up to allow beach access to all property owners, their guests and invitees," Patterson wrote.

An attempt Wednesday to reach Guscio for comment was unsuccessful.

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  2. Carpet on beach paths is litter, town says; residents object: Feb. 11, 2012
  3. Town orders homeowners to remove dune carpets or face fines: April 28, 2012

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