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Buysse v. Jones

Court of Appeals of North Carolina

November 21, 2017

BOB BUYSSE, JOAN GUILKEY and MIKE MILES, Plaintiffs
v.
ADAM and SUSAN JONES, Defendants.

          Heard in the Court of Appeals 18 October 2017.

         Appeal by plaintiffs from order entered 21 November 2016 by Judge Paul C. Ridgeway in Orange County No. 14 CVS 001197 Superior Court.

          Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Michael W. Mitchell and Andrew P. Atkins, and John Joseph Korzen, for defendant-appellants.

          Manning Fulton & Skinner, P.A., by J. Whitfield Gibson and Robert S. Shields, Jr., for plaintiff-appellees.

          TYSON, Judge.

         Adam and Susan Jones ("Defendants") appeal from an order granting Bob Buysse, Joan Guilkey, and Mike Miles ("Plaintiffs") specific performance of the restrictive covenants of the Gimghoul Neighborhood, requiring Defendants to remove the portion of their front porch addition that protrudes into a purported forty-foot setback from Gimghoul Road and a permanent injunction. We reverse and remand.

         I. Background

          A. The Restrictive Covenants

         In 1923, The Junior Order of Gimghouls owned and endeavored to develop a tract of land into a residential neighborhood, later known as the Gimghoul Neighborhood. The land was subdivided into various lots, including Lot 7 at issue in this case, and a plat was recorded in Plat Book 1 Page 51 in the Orange County Registry in 1923. This plat includes the handwritten notation "building line is 40 feet from Gimghoul Road" and shows a drawn line indicating the setback. This plat does not specify width or a specific right-of-way of Gimghoul Road.

         Restrictive covenants were included in all the original recorded deeds. One of the covenants included the following restriction:

That no residences or buildings of any kind erected on the lot shall be nearer any street than the building line designated as "Residence Building Line, " this being 40 feet from the northern boundary of Gimghoul Road, nor shall any residence be nearer either side line of said lot than ten feet, provided where two or more lots are combined to make a larger lot no residence shall be nearer either side line of the larger lot than ten feet. This does not apply to steps having no roof. (Emphasis supplied).

         This restriction was included in the original deed of Lot 7, conveying the lot from The Junior Order of Gimghouls to "S.A. Stoudemire and Irene S. Stoudemire, his wife" on 5 May 1926, and recorded at Book 84 Page 286 in the Orange County Registry.

         In 1950, an unsuccessful attempt was made to modify the original covenants. One proposed change referenced the setback: "[t]hat no residence or building of any kind erected on any lot shall be nearer any street than the building line designated as 'Residence Building Line' on said plot, and in no case less than 40 feet from the front property line . . . ." These proposed modifications were never executed by the lot owners nor recorded in the Orange County Registry.

         In 1983, the Gimghoul Homeowners Association ("HOA") retained an attorney to opine on the validity of the original covenants and the HOA's ability to amend or add restrictions. Several drafts of proposed changes were produced, and several meetings were held to discuss the alterations. The setback requirement was not the focus of the revisions and not discussed until the final draft.

         When questioned concerning the purpose of the proposed change, one HOA member claimed the modification was an effort to "simplify and clarify the setback for each lot since it was not clear what was intended by the 'northern boundary' building line" described in the original covenant. No objections were made to the resulting modification, and the change above was reflected in the final draft, "[n]o residences or buildings of any kind shall be erected on a lot nearer ...


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