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Real Property – Expired Covenants – Implied Contract – Attorney’s Fees

Real Property – Expired Covenants – Implied Contract – Attorney’s Fees

Even after the covenants establishing the plaintiff-homeowners’ association had expired (and this court ruled the obligation to pay dues contained therein could not be extended past 1992 by amendment), the defendant-homeowner continued to both pay the dues assessed by the HOA and to use a road maintained by the HOA. When defendant stopped paying its assessments, the HOA could assert a claim for breach of an implied contract as an alternative to its claim that defendant had breached the expired covenants.

We acknowledge that plaintiff incorporated by reference all prior allegations when alleging the existence of an implied contract, including allegations concerning the existence of an express contract. However, to the extent that plaintiff might have mistakenly incorporated all prior allegations when stating its claim based on an implied contract theory, its intent to allege the existence of an implied contract as an alternate theory is obvious.

We affirm summary judgment for plaintiff in part. We reverse the trial court’s grant of attorney’s fees at this stage.

Plaintiff argues the trial court could award it attorney’s fees under G.S. § 47F-3-116 of the Planned Community Act. However, plaintiff has not conclusively established that its subdivision is subject to the Planned Community Act. That is, a “Planned Community” is defined by the statute as “real estate with respect to which any person, by virtue of that person’s ownership of a lot, is expressly obligated by a declaration to pay” for services. G.S. § 47F-1-103(23).

No evidence shows defendant continues to be “expressly obligated by a declaration to pay” for the services provided by the association. Therefore, we reverse the trial court’s order awarding attorney’s fees at the summary judgment stage.

Sea Gate Association, Inc. v. Range (Lawyers Weekly No. 012-471-22, 7 pp.) (Chris Dillon, J.) Appealed from Carteret County District Court (Peter Mack, J.) David Sawyer for defendant; Eric Remington and Christopher Edwards for plaintiff. 2022-NCCOA-760

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