in the Court of Appeals 7 June 2017.
by Plaintiff from order entered 11 February 2015, judgment
entered 7 March 2016, and order entered 23 August 2016 by
Judge Pauline Hankins in Brunswick County District Court.
Brunswick County, No. 14 CVD 888
Hodges, Coxe, Potter & Phillips, LLC, by Bradley A. Coxe,
brief filed for Defendant-Appellees.
HUNTER, JR., Robert N. Judge.
Property Owners' Association, Inc.
("Plaintiff") appeals an 11 February 2015 order
denying Plaintiff's motion for summary judgment and a 7
March 2016 judgment. Plaintiff also appeals a 23 August 2016
order denying Plaintiff's motion for judgment
notwithstanding the verdict and to amend judgment.
appeal, Plaintiff contends the trial court erred in two
respects: (1) finding an easement by necessity, limited to
the roads required for ingress and egress, because Frank W.
Register and Linda Faye Register ("Defendants")
possess easements appurtenant in all "streets, ditches,
public areas, ICW water access and boat ramp" pursuant
to the Tanglewood West plat; and (2) concluding
Defendants' pro rata share for the 2013 maintenance of
their easements could not be calculated. Plaintiff further
contends the 2013 pro rata share per lot for property owners
in Tanglewood West totaled $133 per lot and Defendants,
accordingly, are responsible for $266 for their two
lots. We reverse and remand.
Factual and Procedural History
May 2014, Plaintiff filed a declaratory judgment action
seeking declaration of parties' rights and obligations over
"the streets, ditches, public areas, ICW water access
and boat ramp" located in Tanglewood "pursuant to
the plats recorded with the Brunswick County Register of
Deeds" and costs attendant thereto. The complaint
alleges the cost of maintaining all easements in Tanglewood
for 2013 totaled $83, 269 and each property owner's pro rata
share per lot, based upon 652non-developer lots, totaled
$128. In sum, Plaintiff alleged Defendant was
liable for $281, which represented their pro rata share, plus
a $25 late fee. Plaintiff sought injunctive relief until such
time Defendants remitted $281.
July 2014, Defendants filed an answer, admitting
"owner[ship] of the dominant estate over the streets,
ditches, public areas, ICW water access and boat ramp"
pursuant to the Tanglewood West plat and by prescription.
However, Defendants denied any duty to maintain the
easements. Defendants pointed to Plaintiff's alleged
noncompliance with the North Carolina Planned Community Act.
Defendants additionally stated that Plaintiff and other
property owners "have not been provided a fair portion
for maintenance, upkeep and operation[, ]" and further
alleged, "[m]embers have more benefits and pay less than
this lawsuit is requiring of the
September 2014, Plaintiff moved for summary judgment against
Defendants. The trial court held a hearing for the
motion for summary judgment on 1 December 2014.
asserted the following arguments: (1) when property is
conveyed by deed, referencing a plat depicting common areas,
an easement over the common areas is held by the purchaser;
2) in accordance with the acquired easement rights, the
easement holder possesses a duty to maintain their easement,
which is irrespective of the easement holder's actual use
of the easement; (3) the pro rata share of maintenance is
then calculated based upon a per lot basis, with the number
of lots determined at the time of conveyance, irrespective of
any subsequent lot consolidation; and (4) accordingly,
Defendants hold an easement over "the streets, ditches,
public areas, intracoastal waterway access, and the boat
ramp" pursuant to their deed and possess a duty to
maintain their easements based upon ownership of two lots.
appeared pro se and presented the following
arguments: (1) with the exception of the roads necessary to
gain access to their property, they do not use the easements
depicted on the plat; (2) use of some of the alleged easement
areas, including the boat ramp and picnic shelter, is
restricted to member use; 3) they are willing to contribute
to the maintenance of the roads, but as a result of this
dispute have been "forced to join an association [they]
don't want to be a member of"; (4) members are
assessed less and afforded greater benefits within the
community, with their dues calculated on a per owner basis
and not on a per lot basis; and (5) their two lots were
combined into one per the "direction of the Brunswick
County Central Permitting[.]"
February 2015, the trial court denied Plaintiff's motion
for summary judgment against Defendants Register and Corbett.
The matter proceeded to a bench trial on 16 February 2016.
called one witness, Jeremy Bass, Vice President of TPOA. Bass
explained the Tanglewood subdivision encompasses three
phases: Tanglewood East, Tanglewood North, and Tanglewood
West. TPOA is a voluntary property owners' association,
established in 1985 to maintain Tanglewood's common areas
and private streets. Following establishment of TPOA, the
developer of the Tanglewood subdivision deeded all common
areas and private roads to TPOA. While there are some areas
within Tanglewood reserved for members only, all property
owners may use the boat ramp, parking lot, and private
subdivision encompasses both public roads, maintained by the
North Carolina Department of Transportation, and private
roads, maintained by TPOA. Although Plaintiff compiled a list
of Tanglewood's roads, some roads, including Lake Peggy
Circle, the road Defendant resides on, appears to be missing
from the list. Despite this, Lake Peggy Circle is depicted on
the Tanglewood West plat.
1985 until 2013, Plaintiff paid for the maintenance of all
common areas and private streets, and non-members were not
required to contribute to maintenance of these areas. However
in 2013, the board of TPOA consulted with an attorney to
determine "if there was a way to have non-members pay
for their fair share[.]" The board acquired a breakdown
of the estimated cost of maintaining all common areas and
private streets within Tanglewood East, Tanglewood West, and
Windy Point Park. The estimated cost of maintaining the
easement areas, excluding any areas restricted to member use
only, totaled $83, 269. The board ascertained the total
number of nondeveloper lots, 652, in Tanglewood East,
Tanglewood North, Tanglewood West, and Windy Point Park from
the original plats, irrespective of any subsequent purchases
that may have resulted in lots being combined. Additionally,
although members of TPOA were not assessed an additional
maintenance fee because their membership dues encompass
maintenance costs, the total number of lots included both
member and non-member lots. The maintenance cost per lot was
then calculated by dividing the total cost of maintenance by
the total number of non-developer lots, equaling
approximately $128 per lot.
sent a demand letter to all non-member property owners,
including Defendant, on or about 31 December 2013, seeking
pro rata contribution of $128 per lot owned. Plaintiff
assessed Defendants $256 pursuant to their ownership of lots
298 and 299 in Tanglewood West; however, Defendants failed to
remit payment. A second letter requesting payment went
Bass's testimony, Plaintiff moved for a directed verdict.
Plaintiff argued Defendants possessed an easement pursuant to
the Tanglewood West plat and, accordingly, possess a duty to
maintain their easement. Plaintiff further contended, if the
trial court determined Defendant possessed an easement over
Tanglewood East, Tanglewood West, and Windy Point Park,
Defendant's pro rata share of maintenance costs would be
$148 per lot. Alternatively, if the trial court construed an
easement only over Tanglewood West and Windy Point Park,
Defendant's pro rata share would be $134 per
lot. The trial court denied Plaintiff's
motion for directed verdict.
Register testified for the defense, and largely narrated his
testimony. He and Mrs. Register have resided in the
Tanglewood subdivision for approximately twenty years. They
elected to be members of TPOA for approximately ten
years; however, they since withdrew from
membership. They did not enter into any agreement regarding
any easements or associated duty of maintenance. However,
their deed does reference the Tanglewood West plat, which
depicts the boat ramp, parking lot, and Lake Peggy Circle.
Although they possess easements "over streets, ditches,
public areas, intracoastal water access and a boat ramp that
are owned by the plaintiff, Tanglewood", he disputed
their duty to maintain these areas.
received Plaintiff's first demand letter, which
"said it was for road usage." The letter did not
mention easements, and Defendants refused to pay because they
were "entitled to the right of way to [their]
property." Defendants then received a second demand
letter from Plaintiff's attorney, specifically asserting
Defendants possessed easements in common areas and the roads
in Tanglewood. However, Defendants did not have access to
these areas. Defendants maintained their property, and
Plaintiff has not provided any maintenance over their
property. He believed Plaintiff's actions are
"criminal" and he "cannot understand how
[Plaintiff] can just come . . . take money . . . for
something that [they have] not agreed to or even had any
March 2016, the trial court entered judgment and concluded
the following: (1) Defendants do not possess any easement
"in the private streets, ditches, boat ramp, ICW water
access and parking lots in Tanglewood West" pursuant to
their general warranty deed or the Tanglewood West plat; (2)
Defendants possess an easement by necessity over Lake Peggy
Circle and West Tanglewood Drive SW to gain access to their
property; (3) Defendants possess "a duty to provide
their reasonable pro rata share" for the maintenance of
their easement over Lake Peggy Circle and West Tanglewood
Drive SW; (4) Defendants do not possess any easement over
"any other private street, ditch, boat ramp, ICW water
access, parking lot, pier, gazebo, or any other common area
including those shown on the plats of Tanglewood West,
Tanglewood East, and Windy Point Park" and are,
therefore, not liable for maintenance of those areas; (5)
based on the evidence presented, Defendants' pro rata
share for the 2013 maintenance of their easements cannot be
determined and Defendants are, therefore, not liable to
Plaintiff for the 2013 maintenance of their easement; and (6)
Defendants, or their successors in title, shall pay for their
"annual, reasonable pro rata share of the ...