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Kings Harbor Homeowners Association, Inc. v. Goldman

Court of Appeals of North Carolina

June 6, 2017

KINGS HARBOR HOMEOWNERS ASSOCIATION, INC., Plaintiff,
v.
ROY T. GOLDMAN and wife, DIANA H. GOLDMAN, Defendants.

          Heard in the Court of Appeals 20 April 2017.

         Appeal 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.

          Robert W. Detwiler for defendant-appellants.

          TYSON, Judge.

         Defendants, 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.

         I. Background

         Kings 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.

         The 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.

         The Declaration contains no reference to a pier or any improvements built beyond the walkway.

         After 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."

         Construction 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."

         On 28 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.

         In 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 ...


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