Lamica v. Gerdes, 200

• Court: North Carolina Supreme Court
• Writing for the Court: BRANCH; BOBBITT
• Citation: Lamica v. Gerdes, 153 S.E.2d 814, 270 N.C. 85 (N.C. 1967)
• Decision Date: 12 April 1967
• Docket Number: No. 200,200
• Parties: George E. LAMICA and wife, Louise W. Lamica, et al. v. John Henry GERDES, Jr.

Page 814

153 S.E.2d 814

270 N.C. 85

George E. LAMICA and wife, Louise W. Lamica, et al. v. John Henry GERDES, Jr.

No. 200.

Supreme Court of North Carolina.

April 12, 1967.

Lloyd S. Elkins, Jr., Wilmington, for plaintiffs.

Marshall & Williams, Wilmington, for defendant.

BRANCH, Justice.

We find no merit in appellant's contention that the court erred in striking from his answer allegations as to changed conditions and zoning. This Court has heretofore stated that, "It is generally held that the encroachment of business and changes due thereto, in order to undo the force and validity of the restrictions, must take place Within the covenanted area." Also, "A valid restriction on the use of real property is neither nullified nor superseded by the adoption or enactment of a zoning ordinance, nor is the validity of the covenant thereby affected." (Emphasis ours) Tull v. Doctors Building, Inc., 255 N.C. 23, 120 S.E.2d 817.

Appellant's primary contention is that the restrictions are unenforceable by plaintiffs because there is no general plan or scheme of development and because the covenants are personal to the original deveoper. Without determining whether the instant facts show existence of a general plan or scheme of development within the subdivision, we are at the outset faced with the question whether plaintiffs need prove that such plan existed in order to enforce the restrictions imposed.

This Court has long held that restrictive covenants 'are in derogation of the free and unfettered use of land' and are to be strictly construed. Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619. However, it has been repeatedly recognized in this jurisdiction that:

'The courts have generally sustained covenants restricting the use of property where reasonable, not contrary to public policy, not in restraint of trade and not for the purpose of creating a monopoly--and building restrictions have never been regarded as impolitic. So long as the beneficial enjoyment of the estate is not materially impaired and the public good and interest are not violated such restrictions are valid. Subject to these limitations the court will enforce its restrictions and prohibitions to the same extent that it would lend judicial sanction to any other valid contractual relationship.' Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 344.

The restrictions imposed in the instant case do not come within the above prohibitions and their validity is not otherwise questioned.

This case exemplifies a large number of situations wherein the grantor has conveyed property within a subdivision subject to restrictions, without imposing similar restrictions on property retained by him. This Court, in Reed v. Elmore, 246 N.C. 221, 98 S.E.2d 360, recognized that in such cases it must be determined whether the grantor Intended to create a negative easement benefiting all the property, or whether he imposed the restrictions for his personal benefit, and evidence regarding a uniform plan is admitted as an expression of the grantor's intentions. Considering restrictive covenants in the Reed case, the Court stated.

'* * * Where the grantor has, by uniformity of the conditions imposed with respect to a given area, evidence his intention to create mutual servitudes and benefits, the restrictions are held to be covenants running with the land. Where there is absence of uniform pattern, the intention is not established; hence, the covenants or restrictions or conditions are held to be personal to the grantor. * * * Uniformity of pattern with respect to a development furnishes evidence of the intent of the grantor to impose restrictions on all of the property and when the intent is ascertained it becomes binding on and enforceable by all immediate grantees as well as subsequent owners of any part of the property; But the fact that there is an absence of uniformity in the deeds does not prevent the owner of one lot from enforcing rights expressly conferred upon him by his contract. 'Contractual relations do not disappear as circumstances change.' * * * (Emphasis ours)

'Plaintiff, when he purchased, heeded the warnings of Justice Connor and caused to be inserted in the deed to him this provision: 'This restriction shall likewise apply to Lot No. 4, retained by the grantor, said Lot No. 4 being adjacent to lands hereby conveyed.' Note the restriction is not on the grantor. It is imposed on the land of grantor. It was a Creation of a servitude on the land irrespective of ownership. There is no need to search for grantor's intent. It is clearly and distinctly expressed.' (Last emphasis ours)

The application of the principles of law enunciated by this Court regarding restrictive covenants is, of course, governed by the factual situation of the particular case. Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388. Factually, the instant case differs from Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918, and other cases relied on by appellant, in that here it is expressly provided by deeds appearing in defendant's chain of title that the covenants are to run with the land, and the deed specifically gives the developer's grantees, the owners of lots in the subdivision, the right to enforce the covenants Inter se.

Considering the effect of covenants in a purchaser's chain of title, the Court in Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661, said:

'Furthermore, covenants limiting the use of land may be enforced against a subsequent purchase who takes title to the land with notice of the restrictions. Davis v. Robinson, 189 N.C. 589, 127 S.E. 697. The law contemplates that a purchaser of land will examine each recorded deed or other instrument in...