in the Court of Appeals 18 October 2017.
by plaintiffs from order entered 21 November 2016 by Judge
Paul C. Ridgeway in Orange County No. 14 CVS 001197 Superior
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.
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
The Restrictive Covenants
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.
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).
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
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
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.
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 ...