Rosi v. McCoy, 122PA86

• Court: North Carolina Supreme Court
• Writing for the Court: FRYE; MITCHELL
• Citation: Rosi v. McCoy, 356 S.E.2d 568, 319 N.C. 589 (N.C. 1987)
• Decision Date: 02 June 1987
• Docket Number: No. 122PA86,122PA86
• Parties: Frances H. ROSI and husband, Fred D. Rosi v. Mary Shull McCOY, Garland Thomas McCoy, and Nautilus Homes, Inc.

Page 568

356 S.E.2d 568

319 N.C. 589

Frances H. ROSI and husband, Fred D. Rosi v. Mary Shull McCOY, Garland Thomas McCoy, and Nautilus Homes, Inc.

No. 122PA86.

Supreme Court of North Carolina.

June 2, 1987.

Trimpi, Thompson & Nash by Thomas P. Nash, IV, and John G. Trimpi, Elizabeth City, for plaintiffs-appellants.

John G. Gaw, Jr., Kill Devil Hills, for defendants-appellees.

FRYE, Justice.

The sole question before this Court is whether the plaintiffs may enforce a restrictive covenant fixing a minimum side set-back requirement against defendants when defendants have secured an amendment to this requirement with respect to their lot from the developers pursuant to another provision of the covenants in question. The Court of Appeals held that the plaintiffs could not enforce the original requirement, and we affirm, although on somewhat different grounds.

Plaintiffs and defendants own adjacent lots in the same development, the Whalehead Club Subdivision in Currituck County, North Carolina. The lots in the subdivision are subject to a set of restrictive covenants filed with the Register of Deeds, Currituck County. Paragraph "Fourth" of the covenants, which applies to plaintiffs' and defendants' lots, provides in part that "[n]o building or structure, including porches, shall be erected ... nearer than ... 15 feet to any interior side lot line...." When defendants' builder erected a house on their lot, however, the builder placed the house only 12.5 feet from the plaintiffs' lot. Plaintiffs complained and initiated the instant action on 7 November 1983, seeking injunctive relief.

Defendants requested and secured an amendment for their lot to the side set-back restriction, from fifteen feet to twelve feet, from the developer pursuant to paragraph "Fifteenth" of the restrictive covenants. Paragraph "Fifteenth" reads:

The Developers, their successors or assigns, reserve the right to amend, modify or vacate any restriction herein contained whenever the circumstances, in the opinion of the Developers, their successors or assigns, warrant such amendment, modification or vacation as being necessary or desirable.

This paragraph applies to the entire development. The developers still owned lots in the subdivision at the time the amendment was given for the defendants' lot. The amendment was duly recorded with the Currituck County Register of Deeds.

All parties moved for summary judgment. The trial judge awarded summary judgment to the plaintiffs and issued an injunction requiring defendants to conform to the original fifteen foot restriction. Defendants were allowed 270 days to move their house. Defendants appealed to the Court of Appeals. Upon the defendants' posting bond, the trial judge postponed enforcement of the injunction pending the outcome of the appeal.

The Court of Appeals reversed the trial judge's decision and remanded the case for entry of summary judgment in favor of the defendants. Relying on a long line of previous decisions of this Court, the Court of Appeals held that the reservation by the developer of the right to amend, modify or vacate any of the restrictive covenants rendered the covenants personal in nature and therefore unenforceable inter se by the grantees of the developer. 79 N.C.App. at 313-14, 338 S.E.2d at 793-94. Plaintiffs petitioned this Court for discretionary review, which was allowed 12 August 1986.

Plaintiffs do not contend that the Court of Appeals misstated the law; instead, they argue that the court misconstrued paragraph "Fifteenth." They contend that in deciding that the developer had reserved a right to amend or modify unilaterally any of the restrictive covenants, the Court of Appeals necessarily construed the phrase "[t]he Developers, their successors or assigns" to mean the developers alone, with words "successors or assigns" having effect only if the original developers were succeeded in their position as developers by someone else. According to plaintiffs, the Court of Appeals thereby improperly failed to give effect to the word "successors." Plaintiffs would have the Court begin its analysis by interpreting the word "successors" to mean "successors in title to the lots," that is, the lot owners rather than successor-developers. They argue that the Court should then read the phrase "the developers, their successors or assigns" as requiring the developers to obtain the consent of all of the lot owners in the development before exercising the right to amend any of the restrictive covenants. Because the developers acted unilaterally, the plaintiffs contend that defendants' purported amendment is invalid.

We reject the plaintiffs' contentions and agree with the defendants that the Court of Appeals correctly construed paragraph "Fifteenth" to give the developers the right to amend the restrictive covenants unilaterally.

As this Court has previously stated,

[t]he applicable rules of interpretation require that the meaning of the contract be gathered from a study and a consideration of all the covenants contained in the instrument and not from detached portions. It is necessary that every essential part of the contract be considered--each in its proper relation to the others--in order to determine the meaning of each part as well as of the whole, and each part must be given effect according to the natural meaning of the words used.

Callahan v. Arenson, 239 N.C. 619, 625, 80 S.E.2d 619, 623-24 (1954).

Because restrictive covenants are in derogation of the free and unfettered use of land, they are to be strictly construed in favor of the unrestricted use of property. Shuford v. Oil Co., 243 N.C. 636, 91 S.E.2d 903 (1956); Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388 (1954). All ambiguities will be resolved in favor of the free alienation of land. Hobby & Son v. Family Homes, 302 N.C. 64, 274 S.E.2d 174 (1981). With these principles in mind, we turn first to consider the natural meaning of the words of paragraph "Fifteenth."

As used in this paragraph, the word "successors" does not appear to mean all successors in title, as urged by the plaintiffs. Black's Law Dictionary 1283 (rev. 5th ed. 1979) defines a successor as "[o]ne that succeeds or follows; one who takes the place that another has left, and sustains the like part or character; one who takes the place of another by succession." Thus, "successor" does not invariably refer to a successor in title; rather, the reader must consider the nature of the "part or character" to be taken. In paragraph "Fifteenth," this "part or character" is described as "the developers," not "the grantors" or some similar term. Successor-developers thus appears to be the natural meaning of the term "successors" as used in this phrase rather than all successors in title to the lots.

The provisions of paragraph "Fifteenth" support the conclusion that the "part or character" in question was that of the developers as developers rather than as mere lot owners. By its own terms, the paragraph reserves a right; this terminology is not consistent with an agreement to exercise the right reserved only with the consent of all other lot owners. The language employed in describing the right reserved, "whenever the circumstances, in the opinion of the Developers, their successors or assigns, warrant such amendment ... as being necessary or desirable," contains terms generally associated with the exercise of individual judgment. Taken as a whole, the wording in this paragraph is more consistent with an intent to reserve to the developers some flexibility with respect to future development than with an intent for them to bind themselves to make no change unless all of the lot owners agreed.

Even assuming, arguendo, that "successors" in this paragraph means successors in title, the phrase "the developers, their successors or assigns" cannot be given plaintiffs' interpretation without altering the ordinary meaning of the construction employed. Plaintiffs argue that for purposes of interpretation, the word "and" should be inserted into the phrase between "developers" and "their successors," so that the phrase would read "the developers and their successors or assigns." Read in this manner, plaintiffs argue, the phrase would mandate the consent of any "successors or assigns" before the restrictive covenants could be validly amended or modified. However, a structure in the form, word A, word B, or word C, employed in the phrase under consideration, generally indicates the use of an enumerative series (e.g., coffee, tea or milk). See W. Follett, Modern American Usage 397-401 (1966). The conjunction employed at the end of the series expresses the relationship between each member of the series, not merely the relationship between its two final members. See id. The series here would ordinarily be read as "the developers, or their successors or assigns." While "or" may be conjunctive rather than disjunctive, a conjunctive interpretation is permissive in such usage, not mandatory (e.g., "Would you like cream or sugar?"). See W. Follett, Modern American Usage 64-65.

Our interpretation is buttressed by the fact that if plaintiffs' interpretation were adopted, paragraph "Fifteenth" would add nothing to the meaning of the covenants. Plaintiffs argue that paragraph "Fifteenth" merely means that if all the lot owners, including the developers, agree, the restrictive covenants may be amended, modified or vacated. However, the law already recognizes the right of owners of lots subject to restrictive covenants to change or vacate the covenants if all consent. See P. Hetrick, Webster's Real Estate Law in North Carolina § 389 (rev. ed. 1981), and cases cited therein. Interpretations that result in superfluous terms are disfavored. Restatement (Second) of Contracts § 203 and comment b at 93 (rev. ed. 1981).

A consideration of the entire instrument, as a whole, discloses no necessity for giving the words of paragraph "Fifteenth" any meaning other than...