Southeastern Jurisdictional Administrative Council, Inc. v. Emerson ( 2009 )

Justice EDMUNDS

concurring.

I concur with the majority holding that, in this case, the annual service charge assessments instituted under the restrictive covenants are reasonable and are enforceable against all defendants. I write separately to emphasize that the unique nature of Lake Junaluska is fundamental to that outcome. In the ordinary case, by contrast, a restrictive covenant purporting to bind all owners and occupants to future regulations that a developer might adopt would not be sufficient to make an assessment implemented decades later by the developer reasonable or enforceable.

A “fundamental premise” of real property law is that “[w]hile the intentions of the parties to restrictive covenants ordinarily control the construction of the covenants, such covenants are not favored by the law, and they will be strictly construed to the end that all ambiguities will be resolved in favor of the unrestrained use of land.” J.T. Hobby & Son, Inc. v. Family Homes of Wake Cty., Inc., 302 N.C. 64, 70, 274 S.E.2d 174, 179 (1981) (citations omitted). As the majority states, rules and regulations created pursuant to a restrictive covenant, like amendments to a declaration of restrictive covenants, must be reasonable. The reasonableness of such rules and regulations “may be ascertained from the language of the declaration, deeds, and plats, together with other objective circumstances surrounding the parties’ bargain, including the nature and character of the community.” Armstrong v. Ledges Homeowners Ass’n, 360 N.C. 547, 548, 633 S.E.2d 78, 81 (2006). The majority opinion properly highlights the contrast between the “fairly typical” subdivision at issue in Armstrong and the “unique, religious community character” of Lake Junaluska. Slip Op. at 12. This distinction is critical to the holding because I believe that, consistent with our analysis in Long v. Branham, 271 N.C. 264, 156 S.E.2d 235 (1967), in most cases affirmative obligations may not be imputed to real property owners when such obligations could not reasonably be anticipated. In a more typical subdivision where the developer does not retain significant control over minute aspects of the development, affirmative obligations adopted pursuant to a restrictive covenant that purports generally to bind all owners and occupants to rules and regulations that may be adopted at some future time by a developer ordinarily would not be reasonable.

For the reasons above, I concur in the majority opinion.