ELFORD C. DILL, Plaintiff,
GERARD G. LOISEAU and wife JENNIFER O. LOISEAU, APRIL B. COTTRILL and husband SHANNON L. COTTRILL, ERIC B. THOMPSON, WILIAM E. KELLAR, LORI BETH HIRSBERG, GERALDINE C. MCALISTER, SHIRLEY BEACHLER, TRUSTEE, STEPHEN MATTHEW WILFONG and wife LISA MAYO WILFONG, HELEN M. WHITE, LISA L. AYERS and husband, CHARLES W. AYERS, and DAVID LEE EDWARDS, Defendants.
in the Court of Appeals 4 October 2018.
by plaintiff from order entered 8 November 2017 by Judge
Forrest D. Bridges in Mecklenburg County No. 16 CVS 11053
Office of Kenneth T. Davies, P.C., by Kenneth T. Davies and
G. Brian Ernst, for plaintiff-appellant.
Alexander Ricks PLLC, by Louis G. Spencer and Ryan P.
Hoffman, for defendants-appellees.
appeal, we consider the circumstances under which (1)
restrictive covenants demonstrate a common scheme of
development within a residential subdivision; (2) changes to
the character of a covenanted area can render otherwise valid
restrictive covenants unenforceable; and (3) the right to
enforce a restrictive covenant is waived by a failure to
object to prior violations. Elford C. Dill brought this
action seeking a declaratory judgment that restrictive
covenants prohibiting the subdivision of certain lots in the
neighborhood where he lived were unenforceable. The trial
court entered an order concluding that the restrictive
covenants at issue remain enforceable. We affirm.
and Procedural Background
1945, Katherine Melton and her husband Guyton Melton acquired
a 12.95-acre tract of land in Mecklenburg County. On 3
September 1953, Mrs. Melton recorded a plat map ("the
Melton Map") entitled "Property of Mrs. Guy
Melton" with the Mecklenburg County Register of Deeds
that divided the land into seven separate lots numbered 1-7
(the "Melton Map Properties"). Lots 1-5 were
subdivided for sale, Lot 6 contained Mrs. Melton's home,
and Lot 7 consisted of a larger tract of undeveloped land.
the next three years, Mrs. Melton sold Lots 1-5. All five of
the lots were purchased subject to identical restrictive
covenants stating that "[n]o subdivision shall be made
of the herein conveyed lot." On 22 March 1963, Mrs.
Melton sold Lot 6. This sale was not subject to any
restrictive covenants. Lot 7, which was not encumbered by any
restrictive covenants prohibiting subdivision at the time the
Melton Map was recorded, was later divided by Mrs. Melton
into three separate parcels for sale. Between 1960 and 1964,
these parcels were conveyed subject to the same restrictive
covenants prohibiting subdivision as those applicable to Lots
May 1977, the owners of Lot 1 conveyed a small portion of the
lot consisting of .199 acres to the owner of an adjoining lot
that was not depicted on the original Melton Map. That same
day, the owners of the adjoining lot conveyed .046 acres of
their property to the owners of Lot 1. The purpose of this
exchange of land (the "Lot 1 Land Swap") was to
provide the owners of the adjacent lot with sufficient land
upon which to build a driveway. On 3 December 1993, Dill
purchased a tract of land that encompassed the majority of
Lot 1 and the entirety of Lot 2.
was acquired by real estate developer K.V. Partners on 10
November 1999. K.V. Partners subsequently recorded a plat map
with the Mecklenburg County Register of Deeds entitled
"Bella Brown Preserve" in 2002. This map subdivided
Lot 6 into three parcels that were subsequently purchased for
June 2016, Dill filed a civil action in Mecklenburg County
Superior Court against all of the other owners of lots
contained on the Melton Map. The named defendants were Gerard
G. Loiseau, Jennifer O. Loiseau, April B. Cottrill, Shannon
L. Cottrill, Eric B. Thompson, William E. Kellar, Lori Beth
Hirsberg, Geraldine C. McAlister, Shirley Beachler, Stephen
Matthew Wilfong, Lisa Mayo Wilfong, Helen M. White, Lisa L.
Ayers, Charles W. Ayers, and David Lee Edwards (collectively
"Defendants"). In his complaint, Dill sought a
declaratory judgment that the restrictive covenants
prohibiting subdivision contained in the deeds to Lots 1-5
were invalid and unenforceable. Specifically, he alleged that
(1) Mrs. Melton "failed to establish any uniform scheme
of development[;]" (2) a "substantial change in
usage" had occurred since the creation of the
restrictive covenants; and (3) Defendants had waived their
right to enforce the covenants.
trial was held beginning on 6 June 2017 before the Honorable
Forrest D. Bridges. On 8 November 2017, the trial court
entered a declaratory judgment in favor of Defendants
"declaring that the subdivision restrictions . . .
present in the chain of title for Lots 1 and 2 of the Melton
Subdivision are consistent with a common scheme of
development, and therefore, these restrictive ...