North Carolina Lawyers Weekly
In 2020, the restrictive covenants of the parties’ community, Sleepy Hollow, were amended to allow the keeping of up to five chickens. But the recorded document before the trial court said the amendment was adopted by “written agreement.” Therefore, since a restrictive covenant is an encumbrance on land, in order to count a lot as a “yes” vote, all owners of the lot were required to assent to the amendment. Because plaintiffs contend that some of the signers own their lots as tenants by the entireties with their respective spouses, we cannot say that the trial court abused its discretion in refusing to relieve defendants of the court’s 2019 order—enjoining defendants from keeping their four chickens—based on the 2020 amendment.
We affirm the trial court’s denial of defendants’ N.C. R. Civ. P. 60 motion. However, we vacate summary judgment for plaintiffs based on the original (1998) covenant.
1998 Covenant
Defendants keep four hens in a coop on their Sleepy Hollow property. The trial court agreed with plaintiffs that defendants are therefore in violation of a 1998 restrictive covenant: “No animals, livestock or poultry of any kind shall be raised, bred or kept on the building site, except that dogs, cats or other household pets may be kept, provided that they are not bred or maintained for any commercial purpose.”
However, while the first clause of the 1998 covenant forbids the keeping of any “animals,” the second clause clearly allows the keeping of animals, so long as they are “household pets” and otherwise not used for a commercial purpose. In the same way, where the first clause forbids the keeping of “poultry,” the second clause could be reasonably read to allow poultry—which, we note, are animals—kept as “household pets” and otherwise not kept for any commercial purpose.
There is a genuine issue as to whether defendants keep their hens as household pets and not otherwise for any commercial purpose. We vacate the trial court’s 2019 summary judgment order.
2020 Amendment
In 2020, as required by G.S. § 47F-2-117, owners of more than 67 percent of the lots in Sleepy Hollow voted to amend their restrictive covenants to allow lot owners to keep up to five chickens. Based on the amendment, defendants moved for relief from the trial court’s 2019 judgment. The trial court denied the motion.
The 2020 amendment is presumed valid under § 47F-2-117. Moreover, G.S. § 47F-3-110(a) allows one of multiple owners of a lot to bind the lot’s other owners to a vote taken in an open meeting if those other owners chose not to attend the meeting.
However, since the recorded document in the record says that it was adopted by “written agreement,” § 47-2-110(a) does not apply. And since a restrictive covenant is an encumbrance on land, the amendment must comply with G.S. § 41-58, which says, “Neither spouse may … encumber any property held by them as tenants by the entirety without the written joinder of the other spouse.”
We are not holding that the 2020 covenant is invalid. It may be that the covenant was voted on at a meeting. On remand, defendants are free to move the trial court for leave to amend their answer to assert the 2020 amendment as a defense.
However, the recorded document that was before the trial court states that the document was adopted by “written agreement.” Accordingly, we cannot say that the trial court abused its discretion in denying defendants’ motion based on the 2020 amendment.
Affirmed in part, vacated in part and remanded.
Bryan v. Kittredge (Lawyers Weekly No. 011-070-22, 11 pp.) (Chris Dillon, J.) Appealed from Granville County Superior Court (Alma Hinton, J.) Chance Wilkinson for plaintiffs; Lydney Bryant for defendants. 2022-NCCOA-201
