Real Property – Laches – Restrictions – Building Setbacks

Irby v. Freese. (Lawyers Weekly No. 10-07-0795, 13 pp.) (Linda Stephens, J.) Appealed from Mecklenburg County Superior Court (Jesse B. Caldwell III, J.) N.C. App.

Holding: During the two months between plaintiffs’ becoming concerned that defendant was violating setback requirements and their filing suit, plaintiffs pursued information about and solutions to their concerns. The plaintiffs brought their action to enjoin construction of the addition to defendant’s dwelling in a timely manner and were not barred by the doctrine of laches.

We reverse the trial court’s dismissal of plaintiff’s claims on the grounds of laches.

Facts

The defendant began constructing an addition to her dwelling in 2007. Her neighbors, observing the dwelling, thought that the addition violated certain restrictions and consulted with their attorney.

The restrictions provided, “No residence erected on the property shall be nearer the property line adjoining Queens Road than Fifty (50) feet, nor … nearer either of the side property lines than Fifteen (15) feet.”

A survey of the defendant’s property showed the addition “was slightly over 20 feet from Queens Road and within six to seven feet from the rear line.”

After consulting with the homeowners’ association, the defendant’s neighbors brought suit in early 2008 seeking to enforce restrictive covenants against the defendant and damages for violations of the restrictions.

The trial court dismissed the plaintiffs’ claims with prejudice, concluding that the action was barred by the equitable doctrine of laches.

The plaintiffs appealed.

Analysis

The trial court’s findings of fact were not contested. Its conclusions of law are reviewed de novo.

The plaintiffs argued that they acted promptly to enforce their rights after becoming aware of their right to enforce the restrictions against the defendants and any delay was not unreasonable.

The plaintiffs first became concerned about the defendants’ addition as early as Dec. 1, 2007, but did not file suit until the following February.

However, in the intervening two months, the plaintiffs took several steps to prepare the suit, including contacting the city planning and zoning and building inspections departments and meeting with their homeowners association and attorney.

These facts do not support the trial court’s conclusion that the plaintiffs’ action was barred by laches.

Instead, the plaintiffs acted promptly and without undue delay once learning of the existence of the grounds for their claim.

Accordingly, we reverse and remand the case to the trial court for a determination on the merits.

 Reversed.