Real Property – Restrictive Covenants – Right to Enforce — Neighbors – Carport – Permissible Auxiliary Structure – Definition of Home – Writ of Mandamus

Sanford v. Williams (Lawyers Weekly No. 12-07-0592, 24 pp.) (Cressie H. Thigpen, J.) Appealed from Catawba County Superior Court. (Robert C. Ervin, J.) N.C. App. Full-text opinion.

Holding:  Where a man’s neighbors constructed a carport in violation of their subdivision’s 1969 covenants, the man had the right to enforce those covenants. This is true, even when both the man and his neighbors were not original grantees of the developer, but subsequent purchasers, so long as they were provided notice at purchase of the covenants in place.

However, while plaintiff had the right to enforce the covenants in the subdivision, his neighbors had not violated those covenants in building their freestanding carport. The carport qualified as a garage under the 1969 definition of the term, or at very least a permissible auxiliary structure.

In measuring the 10-foot setback required under the covenants for the home, the term “home” does not include the carport. The developer could have written that “all homes, garages, carports, or other auxiliary structures shall be at least ten feet from either side property line.” Because the developer did not express such an intention, this court may not restrict the use of the property when the restrictive covenant has failed to do so in a clear manner.

Finally, the trial court improperly granted plaintiff a writ of mandamus when plaintiff still had other administrative remedies he could have pursued. We vacate the writ and the trial court’s order that the City of Hickory make a decision with regard to the zoning in this case within 30 days.

Affirmed in part; vacated in part.