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Hawthorne v. Realty Syndicate Inc.

Filed: November 6, 1979.

THOMAS J. HAWTHORNE, AND WIFE CHARLOTTE M. HAWTHORNE, JEROME MILTON, AND WIFE MARY SUE MOCK MILTON, C. CARL WARREN, JR., AND WIFE JOSEPHINE L. WARREN
v.
REALTY SYNDICATE, INC., MARSH REALTY COMPANY, AND MARSH FOUNDATION, INC.



Appeal by plaintiffs and defendants from Smith (David I.), Judge. Judgment entered 27 April 1978. Heard in the Court of Appeals 29 August 1979.

Erwin, Judge. Judges Clark and Wells concur.

Erwin

Defendants' contention that plaintiffs' action is barred by the applicable statute of limitations is without merit. Plaintiffs filed suit to enforce a restrictive covenant. A restrictive covenant is a servitude, commonly referred to as a negative easement, Craven County v. Trust Co., 237 N.C. 502, 75 S.E.2d 620 (1953), and an easement is an incorporeal hereditament. Davis v. Robinson, 189 N.C. 589, 127 S.E. 697 (1925). G.S. 1-50(3) requires that an action for injury to any incorporeal hereditament be brought within six years. Plaintiffs' action was clearly brought within this period.

Defendants' contention that plaintiffs are barred from enforcing the restrictive covenant, regardless of the existence of a general scheme of development, because they are not adjoining lot owners is without merit.

In ascertaining the enforceability of restrictive covenants by persons not party thereto, it must be determined whether the grantor intended to create a negative easement for their benefit. See Lamica v. Gerdes, 270 N.C. 85, 153 S.E.2d 814 (1967); Property Owners' Assoc. v. Current and Property Owners' Assoc. v. Moore, 35 N.C. App. 135, 240 S.E.2d 503 (1978).

In a deed executed on 23 November 1911, the Stephens Company conveyed Lot 5 of Block 7 with the following convenant: "The foregoing restrictions and covenants are substantially similar to those contained in deeds to adjoining lot owners and are for the mutal [sic] protection of such lot owners." Defendants' deed to Lot 6 of Block 7 from George Stephens was executed on 1 January 1912 and contained the same covenant. Their deed to Lot 7 of Block 7 recited: "It is expressly understood and agreed by the parties hereto that all of the foregoing covenants, conditions and restrictions, which are for the protection and general welfare of the community, shall be covenants running with the land." When Block 9 of the subdivision was developed, the deeds retained the same covenant stated in defendants' deed to Lot 7 of Block 7.

From the various language stated in the respective deeds, it is clear that the grantors intended the covenants to be enforceable by all the lot owners in Blocks 7 and 9, not just the adjoining lot owners. To find otherwise would run counter to the interest of the court and the developers in the orderly development of land. Here, the respective grantors inaccurately used the word adjoining to mean nearby. The covenant was for the mutual protection of those lot owners nearby.

Defendants argue that the lot owners in Block 9 should not be allowed to enforce restrictive covenants in Block 7. Whether lot owners in Block 9 are entitled to enforce restrictive covenants on lot owners in Block 7 is dependent largely upon whether the developers of the property treated and dealt with the two areas as a single unit and intended the restrictive covenants, easements, to cover both tracts, or whether the two blocks were treated and dealt with as separate, independent units, with intent of the developers and purchasers that the restrictions be limited to each block. Craven County v. Trust Co., supra.

Four factors of central importance in determining whether divisional or single unit development was intended are: (1) the way in which the land in question is platted; (2) the scope of any provision for altering the restrictions imposed; (3) the express limitations on the extent of the restrictions imposed by the conveyance; and (4) the similarity of restrictions between subdivisions. 52 Cornell Law Quarterly 611, 613 (1967).

Blocks 7 and 9 are platted together. The restrictions are said to be "for the mutual protection" of adjoining -- nearby lot owners, and "for the protection and general welfare of the community." The restrictions contained in the deeds in Blocks 7 and 9 are substantially similar, although not identical. These crucial factors impel us to hold that Blocks 7 and 9 were treated and dealt with by the developers and purchasers as one single unit. We hold that lot owners in Block 9 are proper parties to enforce the restrictive covenant.

Defendants contend that plaintiffs are barred from enforcing the restrictive covenants, because: (1) the racial restriction in the covenant limiting the properties -- Lots 6 and 7 to occupancy and ownership by whites only makes the limitation to residential use ...


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