Chapter 23 [APPENDIX] NOTEWORTHY NORTH CAROLINA CASES BY SUBJECT

JurisdictionNorth Carolina

23 [APPENDIX] NOTEWORTHY NORTH CAROLINA CASES BY SUBJECT

§ 23.01. Architectural Control, Fines and Enforcement

(1) Hullett v. Grayson, 265 N.C. 453, 144 S.E.2d 206 (1965).

Holding: Restrictive covenant prohibiting erection of temporary building, garage, garage apartment, or trailer for temporary or permanent use did not prohibit owners from constructing detached garage of permanent rather than temporary nature.

(2) Buie v. Johnston, 53 N.C. App. 97, 280 S.E.2d 1 (N.C. App. 1981).

Holding: Owner was entitled to an injunction removing the existing incomplete foundation of a second home on a lot of another owner where restrictive covenants indicated an owner could build only one house on a lot.

(3) Black Horse Run Prop. Owners Ass'n v. Kaleel, 88 N.C. App. 83, 85, 362 S.E.2d 619, 621 (1987), cert. denied, 321 N.C. 742, 366 S.E.2d 856 (1988).

Holding: Association was entitled to an order removing radio towers, along with supporting guy wires and concrete pads, as "structures" within meaning of restrictive covenants.

(4) Forest Oaks Homeowners Ass'n of Lincoln Cnty. v. Isenhour, 102 N.C. App. 322, 401 S.E.2d 860 (1991).

Holding: Structure that was erected from factory-built halves joined over poured-concrete footings before construction of foundation was "modular home" permitted by restrictive covenants, rather than "double-wide mobile home" prohibited by the covenants.

(5) Christopher Props. v. Postell, 106 N.C. App. 180, 415 S.E.2d 786 (N.C. App. 1992).

Holding: Genuine issue of material fact existed as to whether pool and deck complied with restrictive covenants in community that allowed committee authority to disapprove of structures that are deficient as to quality of workmanship or harmony of external design with existing structures.

(6) Stewart v. Kopp, 118 N.C. App. 161, 454 S.E.2d 672 (1995).

Holding: Condominium association and its board of directors had authority to levy daily fine against condominium owner for owner's failure to comply with condominium documents regarding appearance of condominium units.

(7) Raintree Homeowners Ass'n v. Bleimann, 342 N.C. 159, 463 S.E.2d 72 (1995).

Holding: Restrictive covenants that grant broad discretionary power to architectural review committees to approve all construction in subdivisions are enforceable and evidence of association's bad faith was insufficient as a matter of law to raise question of fact for jury.

(8) Hyde v. Chesney Glen Homeowners Ass'n, 137 N.C. App. 605, 529 S.E.2d 499 (N.C. App. 2000).

Holding: Judgment in favor of association that ordered owner to remove pool and fence was reversed because association failed to give valid reasons why the owner's application was denied.

(9) Wise v. Harrington Grove Cmty. Ass'n, 357 N.C. 396, 584 S.E.2d 731 (2003).

Holding: Association's articles of incorporation and bylaws did not expressly authorize it to fine property owners for violating restrictive covenants, and thus, planned community did not retroactively authorize association to impose such fine.

(10) Page v. Bald Head Ass'n, 170 N.C. App. 151, 611 S.E.2d 463 (2005).

Holding: All owners of property subject to restrictive covenants were necessary parties regarding declaratory judgment claim seeking to declare assessment provisions void.

(11) Pendleton Lake Homeowners Ass'n v. Carnell, 625 S.E.2d 204 (N.C. App. 2006) (unpublished).

Holding: Affirming trial court ruling in favor of association ordering the removal of foundation for detached car garage that was rejected by architectural committee.

(12) Channel Walk Homeowners Ass'n v. Sheffield, 183 N.C. App. 154, 643 S.E.2d 678 (2007) (unpublished).

Holding: Owner required to remove deck built inconsistent with approved plans even with evidence town inspector required change and evidence of verbal approval of change from board member.

(13) Schwartz v. Banbury Woods Homeowners Ass'n, 196 N.C. App. 584, 675 S.E.2d 382 (2009).

Holding: Motor home was a "camper" pursuant to covenants and association was entitled to an order relocating camper or screening it with screening approved by association per the covenants.

(14) Bodine v. Harris Vill. Prop. Owners Ass'n, 699 S.E.2d 129, 135 (N.C. App. 2010), review denied, 707 S.E.2d 237 (N.C. App. 2011).

Holding: Declaration precluded homeowners from commencing pool-house construction project absent request for approval and receipt of certificate of approval.

(15) Wills Grove Homeowners Ass'n v. Yaeckel, 208 N.C. App. 285, 702 S.E.2d 556 (2010) (unpublished).

Holding: Owner's removal of shrubs in front of her home and the replacement of planting beds with a concrete skirt covered in bark that formed an extension of the home's foundation did not require pre-approval from association.

(16) Steiner v. Windrow Estates Home Owners Ass'n, 713 S.E.2d 518 (2011).

Holding: Two goats were "household pets" rather than livestock and, therefore, permitted by restrictive covenant that prohibited animals or livestock except for household pets.

(17) Cantillana v. Five Oaks Homeowners Ass'n, 722 S.E.2d 211 (N.C. App. 2012) (unpublished).

Holding: Association was entitled to levy fine against owner until owner installed a conforming front door.

(18) Erthal v. May, 736 S.E.2d 514 (N.C. App. 2012), appeal dismissed, review denied, 736 S.E.2d 761 (N.C. 2013), and review dismissed, 736 S.E.2d 760 (N.C. 2013).

Holding: Equestrian community's covenants, which restricted use of the lots to "residential purposes only" but also expressly allowed "pasturing of horses upon the various lots" as well as construction of "storage facilities, barns and stables," did not prohibit residents from using their land to board horses.

(19) Pohlman v. Magen's Bay Homeowners Ass'n, 2013 WL 793560 (N.C. App. 2013).

Holding: Association was entitled to order removing unauthorized fence.

(20) Fragale v. Hutchinson, 737 S.E.2d 192 (N.C. Ct. App. 2013).

Holding: Individual board members were entitled to be dismissed from action brought by owners who alleged the association breached the declaration by failing to take action to enforce the removal of other owners' unapproved plantings in violation of the declaration.

(21) Bilodeau v. Hickory Bluffs Cmty. Servs. Ass'n, 244 N.C. App. 1, 780 S.E.2d 205 (2015).

Holding: Board has power to rescind fines previously levied against owners.

§ 23.02. Amendments

(1) McElveen-Hunter v. Fountain Manor Ass'n, 96 N.C. App. 627, 386 S.E.2d 435 (1989), aff'd, 328 N.C. 84, 399 S.E.2d 112 (1991).

Holding: Amended declaration restricting leasing of condominium units was valid as to those who purchased units before and after adoption of amendment.

(2) Cornerstone Condo. Ass'n v. O'Brien, 336 N.C. 307, 442 S.E.2d 321 (1994).

Holding: Failure to file amendment to condominium association bylaws that would have prohibited owners from acquiring additional pets within 10-day period specified by bylaws did not render amendment ineffective.

(3) Brown v. Woodrun Ass'n, 157 N.C. App. 121, 577 S.E.2d 708 (2003).

Holding: Declaration was ambiguous, and thus would be construed in favor of limited duration and against restricting property.

(4) Zumkehr v. Hidden Lakes Prop. Owners Ass'n, 158 N.C. App. 747, 582 S.E.2d 82 (2003).

Holding: Vote to amend declaration at the November 16, 1999 meeting could be effective if it was recorded on August 14, 2000, even though the covenants allowed amendments every 10 years by "the then-owners."

(5) Armstrong v. Ledges Homeowners Ass'n, 360 N.C. 547, 633 S.E.2d 78 (2006).

Holding: Amendment that provided for mandatory membership in association and permitted association to assess and collect fees from the association's members was unreasonable and invalid.

(6) Ceplecha v. Pineknoll Townes Phase II Ass'n, 176 N.C. App. 566, 626 S.E.2d 767 (N.C. App. 2006).

Holding: Amendment to only require a simple majority of unit owners to decide not to rebuild or repair damaged portion of condominium violated Unit Ownership Act and Condominium Act and, therefore, was null and void.

(7) Southeast Jurisdictional Admin. Council, Inc. v. Emerson, 363 N.C. 590, 683 S.E.2d 366, reh'g denied, 363 N.C. 749, 688 S.E.2d 692 (2009).

Holding: Amendments to covenants imposing annual service fees on lot owners were reasonable and valid since owners could have reasonably anticipated being required to pay the fees.

(8) Rice v. Coholan, 695 S.E.2d 484 (N.C. App. 2010), review denied, 364 N.C. 435, 702 S.E.2d 303 (2010), review dismissed, 364 N.C. 435, 702 S.E.2d 304 (2010).

Holding: Deeds providing that covenants were to run with the land until certain date, at which time they would be automatically extended for successive 10-year periods absent a vote to the contrary, did not prohibit lot owners from voting to remove the restrictions on dates other than 10-year anniversary dates.

(9) Bowers v. Temple, 721 S.E.2d 762 (N.C. App. 2012) (unpublished).

Holding: Association was authorized to amend condominium declarations to preclude future unit owners from allowing unit lessees to use boat slips.

(10) Fairway Forest Townhouses Ass'n v. Fairfield Sapphire Valley Master Ass'n, 722 S.E.2d 211 (N.C. App. 2012).

Holding: Sub-association's attempt to amend declaration to eliminate duty for sub-association to collect assessments for master association was null and void.

(11) Taddei v. Vill. Creek Prop. Owners Ass'n, 725 S.E.2d 451 (N.C. App. 2012).

Holding: President of association did not breach his fiduciary duty when supporting amendment to covenants to validate prior lot combinations and permit future lot combinations, even though president had a personal economic interest in the amendments because he was a multiple-lot owner.

(12) Wallach v. Linville Owners Ass'n, 234 N.C. App. 632, 760 S.E.2d 23 (2014).

Holding: Amendment to declaration, which eliminated reduced assessment for lots owned by builders who enjoyed same benefits all the owners did, was invalid and unenforceable.

(13) Kimler v. Crossings at Sugar Hill Prop. Owner's Ass'n, 789 S.E.2d 507 (N.C. App. 2016).

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