BILL R. BARRINGER, and
NELLIE A. BARRINGER,
Plaintiffs,
v
.
Catawba County
No. 02 CVS 1569
JAMES MAYETTE HOFFMAN, and
CINDY ISAAC HOFFMAN,
Defendants.
Patrick, Harper, & Dixon, L.L.P., by David W. Hood and Michael
J. Barnett, for plaintiff appellees.
Starnes & Killian, P.L.L.C., by Mark L. Killian, for defendant
appellants.
McCULLOUGH, Judge.
This appeal from summary judgment arises from the following
undisputed facts: Bill and Nellie Barringer (“plaintiffs”) are
developers of the Oak Creek Subdivision (“Oak Creek”), as recorded
in a plat in the Catawba County Registry. In the different
sections of Oak Creek, plaintiffs retained ownership of lot 6 of
Block A, lots 4, 5, 6 & 11 of Block B, and lots 1, 2, 3 & 4 of
Block C. All of plaintiffs' lots were unimproved at the time of the
filing of the pleadings. Before selling the lots in Oak Creek, plaintiffs placed
identical restrictive covenants in warranty deeds sold for each
lot, and duly recorded in 1988. The relevant covenant provisions
of the deeds required:
1. All lots in said subdivision shall be
known, described and used as residential lots
only and no part of any of said lots shall be
used for any type of business, commerce or
industry except, however, a professional
office within a residence may be permitted,
provided that there are no employees working
in said office who are not residents of that
residence. Except as permitted by Paragraph 6
hereof, no other structure of any type shall
be erected, altered, placed or permitted to
remain on any lot, other than one detached,
single-family dwelling.
2. No trade or business or obnoxious or
offensive activity shall be carried on upon
any lot or tract, nor shall anything be done
thereon which may be or become an annoyance or
nuisance to the neighborhood.
3. All dwellings erected on said lots
shall contain a minimum of 1,500 square feet
of heated floor space ....
4. All dwellings constructed shall be
placed approximately midway between the
property lines and shall be no nearer than
thirty (30) feet from the front property line
and fifteen (15) feet from the closest side
property line....
5. The exterior of all structures
constructed in this subdivision shall be
principally of brick, stone, wood, or vinyl
siding, or a combination of said materials.
No cement blocks, cinder blocks, or asbestos
siding shingles may be exposed on the exterior
or above the ground level and all driveways
must be paved with either asphalt, brick, or
concrete.
6. No structures of a temporary
character, no trailers, no mobile home, noshacks or tents may be placed or erected on
said lots. There may be one, but not more than
one, detached garage or utility or accessory
building, but it must comply with all other
restrictions contained herein for the main
building, including the surface of the
exterior and including the distance from front
and side lines.
****
9. No lot shall be used or maintained as
a dumping ground for rubbish, trash, garbage,
or other waste.... All unimproved lots shall
be kept neat and mowed at regular intervals
with all unsightly debris and fallen trees
removed therefrom.
In 1990, these covenants were amended to add the following:
18. The Developer shall name an
Architectural Review Board, which will review
all proposed building plans prior to the time
any owner secures a building permit to
commence construction.... Such approval shall
be at the discretion of the Architectural
Review Board. Disapproval of plans may be
based by the Architectural Review Board upon
any grounds, including purely aesthetic
considerations ....
James and Cindy Hoffman (“defendants”) purchased lot 11 of
Block A from plaintiffs by warranty deed recorded 16 March 1993.
Defendants purchased lots 9 & 10 from plaintiffs by warranty deed
recorded 24 June 1998. The deeds for each of the three lots
contained the above covenants. Defendants' main dwelling was on lot
11. In 1999 defendants placed an accessary building on lot 10,
though lot 10 possessed no dwelling. In 2000, an attorney
representing plaintiffs wrote a letter to defendants stating that
the accessory building on lot 10 was in violation of the
restrictive covenants paragraphs 5 & 6. The attorney contacteddefendants by phone to determine whether the building was made of
metal, and was told by defendants that it was made of wood. Also
without a residential dwelling, in April of 2002 defendants placed
an accessory building, 12 feet by 24 feet, on lot 9. Prior to
preparing the site and the placement of this accessory structure,
defendants had obtained a building permit. Defendants did not
submit any type of plans, proposals or written materials to the
Architectural Review Board (“ARB”) before obtaining the building
permit, and subsequently constructing what was a “Dutch” type
accessory structure. Shortly after the installation of the
accessory structure, plaintiffs demanded in writing the removal of
both structures on lots 9 and 10.
Plaintiffs filed suit on or about 20 May 2002. Defendants
filed their answer and counterclaim on 29 July 2002. In their
counterclaim, defendants raised the doctrine of “unclean hands.”
Defendants alleged that plaintiffs violated covenant paragraph 9 by
leaving chunks of concrete on one of plaintiffs' lots for nine to
twelve months, allowing grass to grow to the level of 3½ feet on
another of their lots, and depositing other trash and rubbish
behind the Oak Creek pond. After first hearing summary judgment
motions on the action, a 13 May 2003 order by the trial court
required that the plans for the lot 9 accessory structure be
submitted to the ARB pursuant to plaintiffs' amended complaint, and
that all outstanding issues be resolved at a rehearing after the
ARB's decision. Certain plans and documents relating to the lot 9
structure were submitted by defendants to the ARB. The plans weredenied because there was no main residential dwelling on lot 9, and
the building materials did not match those of defendant's dwelling
on lot 11.
In a subsequent order filed 22 July 2003 after a 7 July 2003
hearing, the court found as a matter of law the following: That
defendants could amend the pleadings in which they could allege the
decision of the ARB was arbitrary and capricious, but that the
decision was in good faith and under the reasonable objectives of
the Oak Creek scheme; that the covenants were not ambiguous, and
clearly required any detached structure be placed only on a lot
where there is an existing structure, and that placement shall
otherwise conform with the covenants; that these structures be
removed; that plaintiffs were in violation of the covenants by
failing to mow their lots regularly, and failing to remove the
concrete blocks; and lastly, that plaintiffs had not waived the
right to enforce the covenants, and that there was no doctrine of
“unclean hands” available to defendants. The court enjoined the
parties from any further violation of the restrictive covenants and
ordered defendants' accessory structures be removed within thirty
days of judgment. Further, the court ordered that defendants be
enjoined from putting an accessory structure on either lot in the
future unless a main dwelling is constructed, and both are approved
by the ARB. Plaintiffs were ordered to mow their unimproved lots
regularly, and make sure no rubbish was left on any of their lots
by themselves, employees, or agents. Plaintiffs were denied an
award of attorney's fees. Both parties filed an appeal, and assigned error to the order.
Plaintiffs have withdrawn their assignments of error. Defendants
allege the court erred in finding that the relevant restrictive
covenants are clear and unambiguous, that the covenants do require
accessory structures be placed midway between the property lines,
and that the doctrine of “unclean hands” was unavailable. For the
reasons stated herein, we find the trial court's judgment was
rendered without error.
Defendants' first and second issues regard covenant paragraphs
1, 4, & 6. They claim these paragraphs create an ambiguity as to
whether accessory structures can only be placed on lots where a
residential dwelling exists, and whether or not the accessory
buildings need to comply with the front and back set-back
provisions. We find no such ambiguity.
It has long been held by our Supreme Court that “restrictive
covenants are valid so long as they do not impair the enjoyment of
the estate and are not contrary to the public interest.” Karner v.
Roy White Flowers, Inc., 351 N.C. 433, 436, 527 S.E.2d 40, 42
(2000). The original parties to a restrictive covenant may
structure the covenants, and any corresponding enforcement
mechanism, in virtually any fashion they see fit. Wise v.
Harrington Grove Cmty. Ass'n, 357 N.C. 396, 400-01, 584 S.E.2d 731,
735-36, reh'g denied, 357 N.C. 582, 588 S.E.2d 891 (2003); see
Runyon v. Paley, 331 N.C. 293, 299, 416 S.E.2d 177, 182 (1992)
(where it was held an owner of land in fee has the right to
restrict the sale of his land subject to any otherwise lawfulrestriction). The effect to be given unambiguous language contained
in a written instrument, as a clear reflection of the parties'
intent, is a question of law. Id. at 305, 416 S.E.2d at 186. While
we are to review the plain language of a restrictive covenant under
the rule of strict construction, this rule may not be used “'to
defeat the plain and obvious purposes of a restriction.'” Long v.
Branham, 271 N.C. 264, 268, 156 S.E.2d 235, 239 (1967)(citations
omitted).
In the case at bar, covenant paragraph 1 states, “[a]ll lots
in said subdivision shall be known, described, and used as
residential lots only,” and that “[e]xcept as permitted by
Paragraph 6,” no other structure “shall be erected” “other than
one detached, single-family dwelling.” (Emphasis added.) Covenant
paragraph 6 then states that on “said lots” there may be only one
“detached garage or utility or accessory building” “comply[ing]
with all other restrictions contained herein for the main
building.” Covenant paragraph 4 requires “[a]ll dwellings
constructed shall be placed...no nearer than thirty (30) feet from
the front property line and fifteen (15) feet from the closest side
property line.”
We find this language without ambiguity. It clearly states
that all lots are residential, and if a lot owner wishes to add an
accessory type structure on said residential lot, it must be
detached from the main building and otherwise in conformance with
the covenants. It is clear the intent of these covenants was to
create a residential subdivision, which maintained a level of lot-by-lot aesthetic uniformity and cohesiveness, for the purpose of
protecting and even increasing the property value of all Oak Creek
owners. While the use of the word “dwelling” in paragraph 4 to
describe the set-back provisions may initially raise a question as
whether it applies to an accessory structure, this is clearly
resolved in paragraph 6 which states that accessory structures
shall adhere to the covenants setting out “the distance from front
and side lines.” Cf. Hullett v. Grayson, 265 N.C. 453, 453, 144
S.E.2d 206, 206-07 (1965) (where the Court found the following
covenant to be ambiguous and unenforceable: “No temporary building,
garage, garage apartment or trailer shall be erected thereon for
temporary or permanent use.”) Id. (emphasis added). In Grayson,
the court found invalid what was clearly a patently ambiguous
covenant.
Lastly, defendants contend they were improperly denied the
equitable defense of “unclean hands” where plaintiffs failed to
adhere to covenant paragraph 9 relating to unimproved lots. We do
not agree.
“Injunctive relief to enforce the terms of a contract will not
be granted a party who has himself breached the terms of the
contract when his breach is substantial and material and goes to
the heart of the agreement.” Insurance Co. v. McDonald, 36 N.C.
App. 179, 183, 243 S.E.2d 817, 819 (1978). However, such relief is
available to a party seeking enforcement of a contract where that
party's breach is immaterial, and therefore has not acted as a
waiver of the material contract provisions. Id.; Jeffrey R.Kennedy, D.D.S., P.A. v. Kennedy, 160 N.C. App. 1, 14-15, 584
S.E.2d 328, 337, disc. review dismissed, 357 N.C. 658, 590 S.E.2d
267 (2003).
In the case at bar, at the heart of the plain language of the
restrictions on Oak Creek is a regulation of the improved lots of
the Oak Creek Subdivision. Pursuant thereto, each lot, when
improved, must have a residential dwelling conforming to a standard
of aesthetic design set out in the covenants and approved by the
ARB. Paragraph 9, of which the court found plaintiff to be in
breach, relates to the general tending of the unimproved lots, and
is not subject to review by the ARB. Plaintiffs' minor breach
therefor did not materially affect the heart of the Oak Creek
development covenants, nor act as a waiver of those requirements
for improvements on the residential lots. This is not a case where
plaintiffs constructed an accessory-type structure on a residential
lot without it being anchored by a residential dwelling, and then
sought to enforce a covenant contrary to their own actions.
After close review of the transcripts, records, and briefs,
and based on the analysis herein, we hereby affirm the trial
court's judgment.
Affirmed.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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