North Carolina Lawyers Weekly
Craver v. Raymond (Lawyers Weekly No. 12-16-0494, 13 pp.) (Robert C. Hunter, J.) Appealed from Watauga County Superior Court. (Richard L. Doughton, J.) N.C. App. Unpub. Full-text opinion.
Holding: Where (1) one-quarter of the restricted lots in a 1919 subdivision have been re-divided in violation of the restrictive covenant, (2) the re-divided lots are not in one area of the subdivision but are dispersed throughout it, and (3) the majority of additional lot owners – though properly served and joined as defendants – have remained silent throughout the course of this litigation, the restriction against re-dividing lots is unenforceable.
We reverse summary judgment for plaintiffs as to the restriction against re-dividing lots. Otherwise, summary judgment for plaintiffs is affirmed.
The parties have not cited, nor have we found, an N.C. case analyzing whether the division of residential lots in violation of a restrictive covenant amounted to a radical change sufficient to render the covenant unenforceable. As we noted in
Medearis v. Trustees of Myers Park Baptist Church, 148 N.C. App. 1, 558 S.E.2d 199 (2001), “whether or not a radical change has taken place depends on the facts and circumstances of each case.” Under the facts of this case, we conclude the numerous violations of the prohibition on lot divisions recurring over many decades throughout Mayview Park are substantial violations of Restrictive Covenant 5 that have destroyed the uniformity of the plan and the equal protection of the restriction.
The other restrictive covenants in the parties’ deeds are enforceable. While the restriction on erecting more than one residence per lot remains enforceable, it permits the erection of one residence on any lot resulting from the division of an original lot of the Mayview Park plat.
