Crabtree v. Jones

• Court: North Carolina Court of Appeals
• Writing for the Court: McCRODDEN
• Citation: Crabtree v. Jones, 435 S.E.2d 823, 112 N.C.App. 530 (N.C. App. 1993)
• Decision Date: 02 November 1993
• Docket Number: No. 9226SC1134,9226SC1134
• Parties: James W. CRABTREE v. Doris S. JONES.

Page 823

435 S.E.2d 823

112 N.C.App. 530

James W. CRABTREE v. Doris S. JONES.

No. 9226SC1134.

Court of Appeals of North Carolina.

Nov. 2, 1993.

Smathers & Thompson by James W. Crabtree, Charlotte, for plaintiff-appellant.

Weinstein & Sturges, P.A. by Thomas D. Myrick and James N. Freeman, Jr., Charlotte, for defendant-appellee.

McCRODDEN, Judge.

The issue underlying the trial court's grant of summary judgment is whether the restrictive covenant agreement on the subject property is enforceable inter se, i.e., whether one lot owner may enforce it as against another lot owner.

Plaintiff and defendant own houses in the residential development known as Carmel Estates East in Charlotte, North Carolina. The parties' lots are two of 47 in that subdivision which are subject to a restrictive covenant agreement recorded on 13 March 1962 (the Agreement). The Agreement provides, among other things:

1. All lots shall be used for residential purposes only and no building shall be erected, placed or permitted to remain on any lot other than one single family dwelling not to exceed two (2) stories in height above ground and a private garage or carport for not more than three cars.

....

3. No dwelling erected on any lot shall cost less than $25,000.00 based upon costs prevailing on the date these covenants are recorded....

4. The enclosed and heated living area shall be not less than 2,000 square feet for the ground floor of a one-story dwelling, not less than 1,600 square feet for the ground floor of a story and a half dwelling or a split-level dwelling, not less than 1,200 square feet for the ground floor and 2,400 square feet total area for a two story dwelling....

....

16. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them....

17. These covenants may be enforced by [the grantor] or any lot owner or owners by proceedings at law or in equity against the person or persons violating or attempting to violate any covenant or covenants, either to restrain violation thereof or to recover damages.

....

19. These Restrictive Covenants may be amended from time to time and minor violations thereof may be waived by written agreement of [the grantor] and the then owner or owners of any lot or lots to which said amendments or waivers, if any, shall apply.

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Plaintiff presents two arguments based upon two assignments of error. He first argues that the trial court erred in determining that these covenants were not enforceable inter se. The court based its conclusion upon "the law of North Carolina as enunciated by the Supreme Court and Court of Appeals in Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918 (1939) and Rosi v. McCoy, 79 N.C.App. 311, 338 S.E.2d 792, modified and aff'd, 319 N.C. 589, 356 S.E.2d 568 (1987)." In this conclusion, the court erred.

In Humphrey, the Supreme Court considered a set of restrictive covenants that were subject to amendment at any time with the mutual consent of the grantor and the then land owner. The Court found that these restrictive covenants were not enforceable inter se because the provision allowing the covenants to be amended at any time showed that there was no mutuality of burdens and privileges and there was, therefore, no general plan or scheme of development. Humphrey, 215 N.C. at 18-19, 200 S.E. at 920.

Similarly in Rosi, the Court of Appeals held that the reservation of the right to amend the restrictive covenants belied the existence of a general plan or scheme of development and rendered the covenants unenforceable except as personal covenants for the benefit of the grantor. 79 N.C.App. at 313, 338 S.E.2d at 794.

Both Rosi and Humphrey, however, are inapposite. Our Supreme Court recently presented a thorough review and analysis of the law of real covenants and equitable servitudes in Runyon v. Paley, 331 N.C. 293, 416 S.E.2d 177 (1992). As stated in Runyon, in order to enforce a restrictive covenant in equity, a plaintiff must show that the original covenanting parties intended that the covenant bind the party against whom enforcement is sought. 331 N.C. at 311, 416 S.E.2d at 190. If the plaintiff was not a party to the original covenant, he must show that the covenanting parties intended that he be able to enforce the restrictions. Id. To do so, he must present evidence that the covenanting parties intended that he personally benefit from the restrictions, or that the covenanting parties intended that the restrictions benefit land in which the plaintiff holds a present interest. Id. "The latter may be shown by evidence of a common scheme of development ... or of an express statement of intent to benefit property owned by the party seeking enforcement, e.g., Lamica v. Gerdes, 270 N.C. 85, 153 S.E.2d 814 (1967)." Runyon, 331 N.C. at 311-12, 416 S.E.2d at 190 (citations omitted) (emphasis added). A party seeking to enforce a covenant must show a general scheme of development only when the intent of the covenanting parties is unclear. See Lamica, 270 N.C. at 90, 153 S.E.2d at 818.

In this case there was clear evidence of the grantor's intent that the plaintiff's land be benefitted. The statement in the covenants that the restrictions may be enforced by "any lot owner or owners" makes plain the grantor's intent that plaintiff's land be benefitted....