Contract – Restrictive Covenants – Prohibited Residential Structures Covenant

Defendants failed to show an issue of fact regarding whether Plaintiff’s home is a “structure of a temporary character” under the Prohibited Residential Structures Covenant.

We affirmed the trial court’s orders.

This case concerned a dispute between neighbors that generated protracted litigation, which resulted in a declaratory judgment in favor of Plaintiff as to her use of Lot 177 and dismissal or denial of all other claims and counterclaims raised by the various parties. Defendants appealed from two pretrial orders and the final judgment entered following a jury trial.

In 2014, Plaintiff moved into Ashe Lake, which is governed by a Restriction Agreement that contains a series of restrictive covenants that were agreed to and recorded in 1970. Four of the Restrictive Covenants were at issue here. Plaintiff purchased a series of lots in Ashe Lake upon which she erected a home constructed from shipping containers. She also planned to purchase a lakefront lot in the community, where she would store her kayaks, “have a dock,” and “maybe entertain, have a barbecue.” In 2021, Plaintiff discovered that a lakefront lot (Lot 177) was available. Plaintiff, who runs a business designing docks and other waterfront construction, submitted to the Ashe County Building Department a proposal for the dock she wanted to build on Lot 177. She also sought approval of her dock project from the Ashe Lake Property Owners’ Association, Inc. (POA), which approved her plans in 2021.

Based on answers she received from the POA and the Ashe County Building Department, Plaintiff purchased Lot 177 in August 2021. Later that month, Plaintiff met Defendant Osborne, a neighboring property owner. Earlier in 2021, Defendants Osborne and Hamby jointly purchased lots located diagonally across the street from Lot 177. However, Defendants’ interactions with Plaintiff and her boyfriend, Third-Party Defendant Michael Skinner, quickly grew contentious as Plaintiff built her dock and recreational area on Lot 177. Defendants complained Plaintiff’s use of Lot 177 led to parked cars blocking neighborhood traffic. After a couple of months of Defendants’ complaints, Plaintiff purchased Lot 50, a lot adjacent to Lot 177; she claimed she did so “to alleviate the situation,” while Defendants believed the new lot was purchased to be a parking lot for Plaintiff’s guests.

Among other things, Defendants appealed from the trial court’s 2023 order. They asserted the court erred by denying their motion for summary judgment and partially granting Plaintiff’s amended motion for summary judgment as to Defendants’ counterclaim concerning the Prohibited Residential Structures Covenant. The court’s summary-judgment order demonstrates a reasonable interpretation of the Prohibited Residential Structures Covenant, consistent with the covenant’s plain text and properly favoring the unrestricted use of Plaintiff’s property. Defendants failed to show a “genuine issue as to any material fact” regarding whether Plaintiff’s home is a “structure of a temporary character” under the Prohibited Residential Structures Covenant, or that Plaintiff was not “entitled to judgment as a matter of law.”

Affirmed in part, no error in part.

Villazon v. Osborne (Lawyers’ Weekly No. 011-232-25, 26 pp.) (Valerie Zachary, J.) Appealed from Ashe County Superior Court (Nathaniel Poovey, J.) No brief filed for plaintiff-appellee. Miller & Johnson, PLLC, by Nathan A. Miller, for defendants-appellants. No brief filed for third-party defendant-appellee. North Carolina Court of Appeals