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Deeds--restrictive covenants_-house plans
The trial court did not err in a declaratory judgment action by construing the enclosed
heated living area in a restrictive covenant to include a bonus or computer room located on the
second floor of the garage, because: (1) nothing in the restrictive covenant requires the enclosed
heated living area to be on the ground level, but instead only mandates that the space cover a
ground area of not less than 1,400 square feet; and (2) the minimum enclosed heated living space
includes space on the second floor that creates its own footprint over ground area and is not
above first floor enclosed heated living space.
The Yarborough Law Firm, by Garris Neil Yarborough and Barry
K. Simmons, for plaintiff appellee.
Duncan B. McCormick, for defendant appellant.
Carolina Lakes Property Owners' Association, Inc. (defendant) appeals from a declaratory judgment dated 5 December 2001 construing a restrictive covenant in favor of Cumberland Homes, Inc. (plaintiff).
On 6 September 2001, plaintiff filed this action seeking a declaration that two house plans submitted to defendant's architectural committee complied with a restrictive covenant governing section N of the Carolina Lakes residential subdivision. The undisputed evidence, presented at a 30 November 2001 hearing, shows that plaintiff, the owner of two lots in section N of the Carolina Lakes subdivision, submitted two separate plans for housesto be built on the lots. Defendant's architectural committee rejected the plans on the ground they did not comply with Paragraph 6 of the Reservations and Restrictions governing that section of the subdivision. Paragraph 6 states:
6. HOUSE SIZE REQUIREMENTS: The enclosed, heated, living area (exclusive of garages, carports, porches, terraces, private yards, bulk storage and base- ments of one-story, two-story and split level dwellings shall cover a ground area of not less than 1,400 square feet.
The term enclosed heated living area as used in these minimum size requirements shall mean the total enclosed area within a dwelling provided, however, that such term does not include garages, terraces, decks, open porches, and like areas.
Neither of the house plans submitted by plaintiff contained 1,400 square feet of living area on the first floor. They did, however, both contain bonus rooms and/or a computer room located on the second floor above the respective garages. If the bonus rooms and computer room were included in the calculations, both plans exceeded the minimum enclosed heated living area.
Defendant presented no evidence but argued at the hearing that the restrictive covenant should be interpreted to count only living space located on ground level. In support of this position, defendant asserted that second floor living space located above first floor living space was not included in the calculation of enclosed heated living space and, thus, space above a garage should not be counted at all, as a garage was expressly excluded from the calculation. Defendant explained the purpose of the covenant was to maintain similar exterior appearances of houses in that section of the subdivision by requiring a certain amount ofliving space on the ground level and to lead to the construction of ranch-style homes. Plaintiff, on the other hand, contended that second floor living area not located above the first floor living area should be counted toward the minimum as it created an additional footprint over the ground area. Plaintiff argued that the purpose of the covenant was to maintain property values by requiring a certain total amount of livable space in houses in the same section.
The trial court, without making any separate findings of fact or conclusions of law, ordered that the restrictive covenant be construed consistently with the statement:
For purposes of meeting the minimum 1,400 square feet ground area coverage . . . , the phrase enclosed heated living area shall include enclosed heated living space of both the first floor and second floor, and the floor in between in the case of a split level home, as long as such space is not directly above or below other living space that has already been counted and credited toward the minimum ground area coverage requirement.
The trial court further ordered that plaintiff's two house plans were in compliance with the restrictive covenant.
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