in the Court of Appeals 20 April 2017.
by defendants from order entered 18 July 2016 by Judge Jay D.
Hockenbury in Onslow County Superior Court. No. 14 CVS 4011
Cranfill Sumner & Hartzog, LLP, by Regan S. Toups and
Elizabeth King, and Marshall Williams & Gorham, LLP, by
Charles D. Meier, for plaintiff-appellee.
W. Detwiler for defendant-appellants.
Roy and Diana Goldman ("the Goldmans"), appeal from
the trial court's denial of their motion for summary
judgment and grant of the Kings Harbor Homeowners
Association, Inc.'s ("the HOA") motion for
summary judgment. We reverse and remand.
Harbor is a planned residential community located in Onslow
County North Carolina, developed by Industrial Homes, Inc.
("the Developer"). Evidence tends to show the
Developer intended to provide access to Kings Creek as an
amenity for the Kings Harbor lot owners. On 12 August 2005,
the Developer recorded a map entitled "Final Plat for
King's Harbor II." The map identifies a
"10' Pedestrian Walkway Easement" located on
Lot 37, running from the HOA maintained street to the creek
boundary of Lot 37. The maps do not show any easement or pier
extending into the creek. The pier and deck at issue was
built years after the map was recorded. The Developer
recorded a revised map five years later, for the purpose of
showing removal of off-site septic systems. Otherwise, the
original and revised maps are identical.
same day the original map was recorded, 12 August 2005, the
Developer also recorded the "Declaration of Restrictive
Covenants Kings Harbor II" ("the
Declaration"). Paragraph 11 of the Declaration, entitled
"Common Area, " states:
All lot owners shall have use of the walkway on Lot 37 as
shown on the recorded plat. Repairs and maintenance of said
walkway shall be the responsibility of the Homeowners'
Association. Hours of walkway use shall be limited to 9:00
a.m. through 9:00 p.m. daily.
Declaration contains no reference to a pier or any
improvements built beyond the walkway.
the original map and Declaration were recorded, the Developer
began construction of a wooden pier and walkway on Lot 37 of
the subdivision, with the apparent intention that the pier
would eventually be conveyed to the HOA. The Developer filed
an application in January 2006 with the North Carolina
Department of Environmental and Natural Resources, which
sought a permit to construct the pier under the North
Carolina Coastal Area Management Act ("CAMA"). The
plans submitted in support of the permit application depicts
the pier connecting with the walkway easement. The Division
of Coastal Management issued the permit to the Developer on 5
April 2006. The permit refers to the pier as a
"community access facility."
of the pier was completed in August 2007. Since that time,
the pier has been in continual use by the Kings Harbor lot
owners. The pier was constructed on Kings Creek and can be
accessed via the ten-foot pedestrian walkway easement over
Lot 37. Shortly after construction of the pier was completed,
a sign was erected at the walkway's entrance, which read,
"Kings Harbor Pier."
March 2006, the Developer conveyed Lot 38 via general
warranty deed to Mrs. Goldman's mother, Willa Mae
Hartley. Ms. Hartley began living in the home constructed on
Lot 38 in 2007. Lot 38 is located adjacent to Lot 37. When
Mrs. Goldman visited her mother, she would see neighbors
openly using the walkway and pier.
March 2011, the Developer conveyed Lot 37 to Ms. Hartley via
general warranty deed for the purchase price of $100, 000.00.
On 16 October 2014, the Developer purported to convey all of
its title, rights, and interests in the community pier and
walkway easement to the HOA. Ms. Hartley never took any
action to discourage or prevent the HOA lot owners from using
the walkway or pier, nor ...