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Real Property — Condominium – Parking Space – Waiver – Laches – Statute of Limitations

Ocracomax, LLC v. Davis (Lawyers Weekly No. 011-257-16, 14 pp.) (Rick Elmore, J.) Appealed from Hyde County Superior Court (Wayland Sermons Jr., J.) N.C. App.

Holding: Even though, when plaintiff bought a condo unit, plaintiff knew about a shed that belonged to the defendant-neighbors and covered half of plaintiff’s two-car parking space, and even though plaintiff waited more than three years after its purchase to seek access to its full parking space, the corporation bylaws expressly state that a unit owner’s failure to enforce its rights “shall not constitute a waiver of the right of the … Unit Owner to enforce such right … in the future.”

We affirm judgment for plaintiff.

Although defendants argue that quasi-estoppel bars plaintiff’s claim because plaintiff previously used the shed, the record does not reveal that plaintiff accepted a benefit under a transaction or an instrument. Since the record does not reveal that plaintiff received a benefit under its purchase agreement (which pointed out the neighbors’ ownership of the shed) or that plaintiff is taking a position inconsistent with a prior acceptance of that or any other instrument, plaintiff is not estopped from seeking a declaration of its right to the parking space.

Where defendants fail to allege that plaintiff’s delay worked to their disadvantage, injury, or prejudice, defendants’ laches defense fails.

Even if the six-year statute of limitations for incorporeal hereditaments applies, the statute could not begin to run until plaintiff purchased its unit. Before that, one person owned the parking spaces and the shed in question, so there was no damage to anyone. Because plaintiff filed its complaint within six years of purchasing its condo, its claim is not barred by the statute of limitations.


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