Rosi v. McCoy

338 S.E.2d 792 (1986)

Frances H. ROSI and Husband, Fred D. Rosi v. Mary Shull McCOY, Garland Thomas McCoy, and Nautilus Homes, Inc.

No. 851SC613.

Court of Appeals of North Carolina.

February 4, 1986.

*793 Trimpi, Thompson & Nash by John G. Trimpi and Thomas P. Nash, IV, Elizabeth City, for plaintiffs-appellees.

Kellogg, White, Evans, Sharp & Michael by Robert L. Outten, Kitty Hawk, and John G. Gaw, Jr., Kill Devil Hills, for defendants-appellants.

ARNOLD, Judge.

Defendant appellants contend that the trial court erred in granting summary judgment in favor of plaintiffs because the restrictions pertaining to defendants' lot within the subdivision were personal to the grantor developers and therefore plaintiffs had neither the right nor the power to bring an action inter se to enforce the restrictions. We agree.

The general rule in North Carolina is that

Where the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees, imposing restrictions on its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee, either on the theory that there is a mutuality of covenant and consideration, or on the ground that mutual negative equitable easements are created.

Maples v. Horton, 239 N.C. 394, 398, 80 S.E.2d 38, 41 (1954). However, in this instance the developers reserved the right to amend or modify any of the restrictions where, in the sole opinion of the developers, *794 such action was necessary or desirable. As stated in Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918 (1939), this provision is notice to all grantees within the subdivision that, by gaining the consent of the developers, a grantee may place his building on any lot within the area without right of interference by the owner of any other lot. This right to change the restrictions on lots within the subdivision refutes the idea of a general plan for residential purposes to be exacted alike from all purchasers, and to be for the benefit of each purchaser. Maples v. Horton, 239 N.C. 394, 80 S.E.2d 38 (1954); Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918 (1939). See also Annot., 4 A.L.R.3d 570 (1965). As a result, the restrictions are not enforceable except as personal covenants for the benefit of the developers. Maples, supra.

Plaintiffs seek to distinguish the case at bar from Beall and Maples by noting that the developers in this instance did not specifically reserve the right to sell the unsold lots without restrictions as did the grantors in Beall and Maples. However, we do not find that this reserved right as to unsold lots is essential to the conclusion that restrictions on the property are personal in nature. The fact that the developers may unilaterally act to modify, amend, or vacate any of the restrictions whenever the developers deem such action desirable is sufficient to find that the restrictions are personal to the developers. See Annot., 4 A.L.R.3d 570 (1965). We also note that the developers' power to amend would seem broad enough to allow them to sell any unsold lots without restrictions. Id.

Finally, plaintiffs agreed to accept the deed subject to the right of the developers to modify or amend any of the restrictions. This right appeared in the restrictions in unambiguous language. The developers have exercised that right and have amended the restrictions on defendants' property. The rights of the parties must be determined by the agreement they voluntarily made, and plaintiffs cannot now be judicially relieved of an improvident bargain which provided for such amendments.

For the above reasons, we hold that plaintiffs do not have the power to bring an action inter se to enforce the property restrictions. The judgment of the trial court is reversed, and the cause is remanded to the Superior Court of Currituck County for entry of summary judgment in defendants' favor.

Reversed and remanded.

WELLS and PARKER, JJ., concur.