Winding Ridge Homeowners Ass'n v. Joffe
| Decision Date | 17 July 2007 |
| Docket Number | No. COA06-1506.,COA06-1506. |
| Court | North Carolina Court of Appeals |
| Parties | WINDING RIDGE HOMEOWNERS ASSOCIATION, INC., a North Carolina not-for-profit Corporation, and Theodore J. Humphrey, III, a natural person, Plaintiffs, v. Zalman JOFFE and wife, Devora Joffe, Suntrust Mortgage, Inc., Jackie Miller, Trustee, Alston Mason, Tyler Murtaugh, Trip Short, Brooks Weller, and Taylor Harrington, Defendants. |
Brown & Bunch, PLLC, by Charles Gordon Brown, Chapel hill, for plaintiff-appellees.
The Brough Law Firm, by G. Nicholas Herman, Chapel Hill, for defendant-appellants.
On 19 April 2006, the Winding Ridge Homeowners Association, Inc., and Theodore Humphrey, III ("plaintiffs") filed an action against defendants Zalman and Devora Joffe ("Joffes"), owners of Lot 1 and a residence located at 106 Mullin Court, Chapel Hill, North Carolina, in the Winding Ridge Subdivision. The action also included as defendants: SunTrust Mortgage, Inc., who holds an interest in defendants' property; Jackie Miller, who holds security title to defendants' property under a deed of trust; and Alston Mason, Tyler Muraugh, Trip Short, Brooks Weller, and Taylor Harrington, who were college students residing at defendants' property as tenants or subtenants at the time of the action. Plaintiffs alleged that defendants' leasing of their residence to the tenants violated the subdivision's restrictive covenants. Specifically, plaintiffs alleged that defendants were in violation of Article VIII, Section 3(b) of the restrictive covenants, which provides that the lots in the subdivision "shall be used for single family residential structures." Plaintiffs sought an injunction to enforce the restrictive covenants, and to prohibit defendants from allowing the property to be occupied other than by a single family. On 9 May 2006 and 20 June 2006, respectively, Joffe and the students answered the complaint, admitting most of its factual allegations but denying that the students' use of the residence violated the restrictive covenant.
Neither party disputes the fact that the restrictive covenant at issue is binding upon the Joffes' property and use of the property. The restrictive covenant at issue, originally recorded in 1987, contains a provision found in Article VIII, titled "Use Restrictions." The covenant provides:
Section 3. Use of Property.
(a) Only one single family dwelling or replacement thereof shall be placed upon each lot as designated on the said plat and no such lot shall be further subdivided by future owners for the purpose of accommodating additional buildings . . . .
(b) This property shall be used for single family residential structures and no duplex houses, apartments, trailers, tents or commercial or industrial buildings shall be erected or permitted to remain on the property provided, however, that this restriction shall not preclude the inclusion of one small light housekeeping apartment within the residential structure for occupancy by not more than two persons.
(c) No single family dwelling shall be built, erected, altered or used unless the main body of the structure, exclusive of garages, porches, breezeways, stoops and terraces, shall contain at least 1650 square feet of finished and heated floor space in the main body of the house if the structure is a one-story building or at least 2,000 square feet for all other structures. . . .
(Emphases added). On 23 January 2004, Joffe's wholly-owned construction company, Ridge Construction, Inc. (Ridge Construction), acquired the subject lot in the Winding Ridge Subdivision. On 30 December 2003, Ridge Construction obtained a zoning compliance permit from the Town of Chapel Hill to develop the lot with a "single family residence." On 13 January 2004, a building permit was issued, and on 7 June 2004, the Town issued a Certificate of Occupancy for the residence. Ridge Construction then conveyed the lot and residence to the Joffes on 10 June 2004.
At some point after the conveyance of the property, Joffe leased the residence to four students who were unrelated to one another. Based upon the affidavit of one of the students, they had been "living together in the residence as a single housekeeping unit and as a single place for culinary purposes." In addition their
On 16 June 2006, plaintiffs filed a Motion for Partial Summary Judgment and Permanent Injunction, seeking an injunction against defendants' continued violation of Article VIII, Section 3 of the subdivision's restrictive covenants. The Joffes filed a Motion for Partial Summary Judgment on 21 June 2006, arguing that the restrictive covenant at issue limits only the use of the lots to "single family residential structures" and does not limit the use of lots within the subdivision to single family occupancy. On 18 August 2006 the trial court entered an order granting plaintiffs' motion for partial summary judgment and permanent injunction. The trial court held that:
5. Article VIII of the Covenants, reasonably construed, unambiguously restricts the use of Lot 1 to single family residential use.
6. Based upon a reasonable construction of Article VIII in context with the rest of the Covenants, use of Lot 1 is restricted to single family residential.
7. The plain and obvious purpose of Article VIII is to restrict Lot 1 to single family residential use. The multiple references to "single family dwelling or replacement," "single family residential structures" and "single family dwelling" in combination with the captions "Use Restrictions" and "Use of Property" restricts the utilization of Lot 1 to single family occupancy. This finding is also supported by the prohibition of duplex houses and apartments and the negative inference derived from the narrow exception for a "light housekeeping apartment within the residential structure for occupancy by not more than two persons."
8. Giving each part of the Covenants effect according to the natural meanings of the words, including all reasonable inferences therefrom applied in such a way as to avoid defeating the plain and obvious purposes of the restriction, the Covenants were intended to restrict Lot 1 to single family residential use.
9. The Joffes had actual and constructive notice of this use restriction when they purchased Lot 1.
10. The five student occupants are not related by blood, marriage or lawful adoption.
11. The five student occupants are not substantively structured as an integrated family unit.
12. The five student occupants are housemates who, in the course of attending college, share the cost of having a place to live as well as, on occasion, meals and fellowship. However, they are not substantively structured like a family or an integrated family unit.
13. The occupancy of Lot 1 by these students is a use of Lot 1 other than for single family residential purposes.
14. The Joffes, by permitting these students to occupy Lot 1, have violated the Covenants.
The Joffes also were "enjoined and restrained from using or making Lot 1 available for occupancy to any group of two or more persons not related by blood, marriage, lawful adoption, or who are not substantively structured like an integrated family unit." The Joffes have appealed from this order.
On appeal, defendants present two issues for our review: (1) whether the trial court erred in concluding that the restrictive covenant prescribing that lots "shall be used for single family residential structures" is an occupancy restriction rather than a structural restriction; and (2) if we are to hold that the restrictive covenant at issue is an occupancy restriction rather than a structural restriction, then whether the trial court erred in concluding that the students who occupied the premises were not substantively structured like an integrated family unit, and thus defendants' use of the property violated the covenant. Defendants contend that the restrictive covenant at issue constitutes a structural restriction, whereas plaintiffs argue that the covenant, when construed with the Article and Section titles, constitutes an occupancy restriction, and thus limits the usage of the property to usage by a "single family."
On appeal, our standard of review for an order granting summary judgment is de novo. Stafford v. County of Bladen, 163 N.C.App. 149, 151, 592 S.E.2d 711, 713 (2004), appeal dismissed, 358 N.C. 545, 599 S.E.2d 409 (2004). Summary judgment is only appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Leake v. Sunbelt, Ltd. of Raleigh, 93 N.C.App. 199, 201, 377 S.E.2d 285, 287 (1989). "[I]n considering summary judgment motions, we review the record in the light most favorable to the nonmovant." Id. "The entry of summary judgment presupposes that there are no issues of material fact." Cieszko v. Clark, 92 N.C.App. 290, 292-93, 374 S.E.2d 456, 458 (1988). Thus, "[f]indings of fact and conclusions of law are not necessary in an order determining a motion for summary judgment," and, "such findings and conclusions do not render a summary judgment void or voidable and may be helpful, if the facts are not at issue and support the judgment." Bland v. Branch Banking & Tr. Co., 143 N.C.App. 282, 285, 547 S.E.2d 62, 64-65 (2001).
"Restrictive covenants are strictly construed, but they should not be construed `in an unreasonable manner or a manner that defeats the plain and obvious purpose of the covenant.'" Hultquist v. Morrow, 169 N.C.App. 579, 582, 610 S.E.2d 288, 291 (quoting ...
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