Sleepy Creek Club, Inc. v. Lawrence

225 S.E.2d 167 (1976)

29 N.C. App. 547

SLEEPY CREEK CLUB, INC., et al. v. Willard E. LAWRENCE et al.

No. 768SC10.

Court of Appeals of North Carolina.

June 2, 1976.

*170 Kornegay, Bruce & Rice, P.A., by R. Michael Bruce, Mt. Olive, for plaintiffs-appellants.

John W. Dees, Dees, Dees, Smith, Powell & Jarrett, Goldsboro, for defendants-appellees.

VAUGHN, Judge.

The Lawrences' grantors (Sedberrys) placed the restrictive covenant in the deed. The restriction had not been in the chain of title prior to the conveyance to the Lawrences. The servitude imposed by the restrictive covenant is a species of incorporeal right. When the Sedberrys impressed the servitude created by the restrictive covenants they thereby conveyed less than an unencumbered fee. A negative easement is a vested property right. The Sedberrys do not seek to enforce that right. The action is by plaintiffs who are strangers to the contract of conveyance.

We start with the well established proposition that since restrictive covenants are in derogation of the free and unfettered use of land, covenants imposing them are to be strictly construed against limitations on use. The same principle, we believe, should be observed when attempting to determine who may enforce the restrictive covenant.

The courts have indicated that for a covenant to be enforceable by a stranger, it must be shown to have been impressed for his benefit. Plaintiffs rely heavily on Lamica v. Gerdes, 270 N.C. 85, 153 S.E.2d 814. In Lamica, the grantor expressly provided in the deed that other property owners in the subdivision should have the right to sue to enforce the restrictive covenant. The provision was obviously acceptable to the grantee and the consequent sale by deed, including the provision was, therefore, an express contract made for the benefit of third parties. The court simply enforced the contract of the parties. If the Lawrences and Sedberrys had desired to make a similar contract for the benefit of plaintiffs and others, they could have put the provisions in this deed and a similar result could have been obtained. They did not do so.

Neither can plaintiffs benefit from those cases holding that where a tract was originally sold under a uniform plan of development requiring the covenants to be placed in all deeds, it may be shown that the covenants were inserted for the benefit of all owners within the development and that they are enforceable inter se. Here, the covenants were not a part of any uniform plan of development by the original developer. They were, for the first time, inserted in the chain of title by the Sedberrys. Even now there is no uniform scheme of development (or redevelopment) of the subdivision.

The trial court concluded that plaintiffs cannot enforce the covenant found in the deed from the Sedberrys to the Lawrences. We hold that that decision was proper. It is not necessary, therefore, for us to pass upon defendants' cross exceptions to the court's conclusion that the structure on the lot is a "house trailer" within the meaning of the restrictions.

The judgment dismissing the action is affirmed.

Affirmed.

BRITT and ARNOLD, JJ., concur.