In an August 1, 2017 decision, Tanglewood Property Owners’ Ass’n v. Isenhour, et al., the North Carolina Court of Appeals affirmed the duty of a property owner that has the right to use an easement in a subdivision to pay for a share of the cost of maintaining the easement. In this case a voluntary property owners’ association created prior to the Planned Community Act was awarded judgment against a lot owner who claimed that he did not use all of the roadway easement in a subdivision and was not a member of the association. The Court’s opinion restated the principle that the obligation to contribute to road maintenance can be calculated on a pro rata (per lot) basis without
As spring moves into summer, mountain residents and visitors spend more time in the outdoors taking advantage of our beautiful weather and scenery. Dog owners should be aware of the potential liability that may arise when your dog is allowed to roam free without any restraint. Many communities have restrictive covenants in their deeds requiring dogs to be kept in fenced yards or on a leash when off the owner’s property. Towns and counties may have ordinances with similar provisions. If you fail to comply with deed restrictions and/or ordinances and a neighbor or visitor is injured by your dog, you could be held liable for damages. Some breeds of dogs can cause you to lose your insurance coverage or
Knowing the difference can avoid problems! One of the most common situations we face is an Association thinking that it can use amendments to the bylaws to change the declarations (also known as the “covenants”). In western North Carolina this mistake is compounded by recording bylaws with the Register of Deeds. Bylaws and declarations serve two different purposes and amending the bylaws of your Association DOES NOT change your declarations. Bylaws should be used primarily as internal operating rules for your Association – including information regarding election procedures, board and member meetings, and similar information. As an internal document, they should not be recorded with the Register of Deeds as this may inadvertently create uncertainty as to your declarations. Declarations
A recurring problem we see in restricted communities arises when lots are combined. Declarations often permit combination of lots without discussing how the combination will effect assessments. Lot owners and/or associations often assume that language in the declarations permitting combination of lots also permits the owner of the combined lots to pay one assessment. Under current law, that assumption is not correct. The North Carolina Court of Appeals held in Clarement Property Owners Association v. Gilboy that in the absence of declaration provisions specifically permitting the reduction of assessments when lots are combined, the owner of the combined lots must continue to pay assessments as if the lots were not combined. While the decision involved a community that was not
In an appeal defended by Bill Cannon and Mike McConnell of Cannon Law, P.C., the North Carolina Court of Appeals found that a suit by a property owner’s association against the developers was not brought within the statute of repose and was properly dismissed by the trial court. In The Glens of Ironduff POA v. Daly, decided December 4, 2012 (COA 12-52), the Court reviewed a suit brought by a property owners’ association against the subdivision developer. The suit claimed that a road in the subdivision had been located too close to a stream and the association was entitled to reimbursement for cost of repairs to the road. The developer, represented by Bill Cannon and Mike McConnell of Cannon Law,
In Erthal, et al. v. May, decided by the North Carolina Court of Appeals on November 20, 2012, the Court dealt with a suit arising out of a commercial stable operation located in an equestrian residential community. Although the restrictive covenants for the subdivision permitted horses and stables, the Plaintiffs contended that the commercial nature of the Defendants’ operations were a violation of the restrictions. The Court of Appeals disagreed and affirmed the trial court’s decision in permitting the commercial stable operation. Narrowly construing the restrictive covenants, the court noted that there was no express prohibition against commercial activity and that the stable operations were taking place in conjunction with a residential use. Members of restricted communities should not assume
The Sedimentation Pollution Control Act of 1973 (SPCA) is a North Carolina law regulating activities that disturb natural ground cover. It authorizes local governments to enact ordinances regulating construction activity to prevent erosion and pollution by sediment and allows parties injured by activity in violation of the law to recover damages. In Applewood Properties, LLC, et al. v. New South Properties, LLC, et al., decided March 20, 2012, the North Carolina Court of Appeals reviewed an order by the trial court granting summary judgment to defendants and dismissing SPCA claims filed against the defendants. The court found that while the defendants may have engaged in soil disturbing activities, there was no sediment deposited into water as a result of those
In a decision entered February 21, 2012 (In the Matter of Appeal of Ocean Isle Palms, LLC, COA 11-1127), the North Carolina Court of Appeals reversed a decision of the North Carolina Property Tax Commission in favor of the property owner regarding tax valuation of real estate. For several years the county had valued lots in subdivisions that did not have completed infrastructure using a sliding scale based upon an approximate percentage of infrastructure completed. As more lots were sold without infrastructure, the county changed this method of valuation and the land owner argued that the valuation was not permitted by statute. The tax commission agreed with the land owner, but the Court of Appeals reversed the tax commission and
In Orange County the Town of Hillsborough, 10-CVS-1082, decided February 21, 2012, the North Carolina Court of Appeals upheld a Superior Court judge’s order finding the denial of a zoning compliance permit to OrangeCounty was arbitrary and capricious. Orange County’s attempt to comply with Hillsborough’s zoning ordinance regarding expansion to the Justice Center ran into a problem when the county submitted plans for parking. The Town ofHillsborough deemed the county’s use of remote parking facilities as unacceptable. Upon appeal toSuperior Court, the Superior Court judge determined that decision to be arbitrary and capricious because the County had met the requirements of the zoning ordinance.
In a foreclosure case decided recently by the North Carolina Supreme Court (In the Matter of the Foreclosure of the Deed of Trust of Vogler Realty, Inc., No. 11A11), the Court considered whether the Clerk of Superior Court has the authority to determine the reasonableness of attorney’s fees that a Trustee-Attorney in a foreclosure proceeding pays to himself in addition to his Trustee’s commission. The Court held that the Clerk of Superior Court lacked the authority and affirmed the decision of the Court of Appeals.