Rosi v. McCoy

Justice Mitchell

concurring in result.

It seems rather clear to me that the covenants in question in this case either run with the land or are personal covenants. *598Whether they are one or the other is dependent not upon whether the developers have sold all of the lots in the development, but upon a proper interpretation of the covenants themselves.

Assuming the majority is correct in construing the term “successors” to include only “successor-developers” and not all successors in title to the lots, I share the view of the Court of Appeals that the covenants, so construed, gave “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.” Rosi v. McCoy, 79 N.C. App. 311, 313, 338 S.E. 2d 792, 794 (1986). This definition of “successors” compelled the Court of Appeals to conclude that the restrictions are not part of a general plan for residential development for the benefit of each purchaser, but are enforceable only as personal covenants for the benefit of the developers. See 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); Annot., 4 A.L.R. 3d 570 (1965).

The majority avoids deciding whether the covenants in question here are personal covenants by stating that the only question to be decided is “whether the plaintiffs [successors in title to the developers] could enforce the original restrictions against the defendants who had obtained an amendment of the setback requirements from the developers.” That was the only question answered by the Court of Appeals, although it did so by holding that the covenants were personal covenants which could be enforced only by the developers and not by the lot owners. The Court of Appeals answered the same question now answered by this Court, but it did so upon a different — and in my view more nearly correct — theory than that relied upon by the majority here.

The theory relied upon by the Court of Appeals, in addition to being correct, is more true than that of the majority here to the general rule recited by the majority — that restrictive covenants are to be construed in favor of the unrestricted use and free alienation of land. The Court of Appeals reached its construction in favor of the unrestricted use of property from the face of the covenants themselves. The majority here avoids the same reasoning only by viewing the covenants in the artificially dim light *599of the partial amendment of the covenants as to one of the lots by the developers and the fact that the developers have not yet sold all of the lots in the development.

The opinion rendered by the Court of Appeals made the status of the restrictive covenants before us clear — they were construed to be personal covenants solely for the benefit of the developers. The opinion of the majority of this Court leaves the plaintiffs and remaining lot owners of the development to wonder if their ability to enforce the covenants against other lot owners depends upon whether the developers have granted amendments relating to particular lots or have sold all of the lots in the development. Questions concerning the permissible uses of land must be answered with much more certainty.

For the reasons fully stated in the opinion of the Court of Appeals, I concur only in the result reached by the majority of this Court.