Goodrow v. Curtis E. Martin, Inc. , 6 N.C. App. 599 ( 1969 )

PARKER, J.

A restrictive covenant creates a negative easement constituting an interest in land. 3 Strong, N.C. Index 2d, Deeds, § 19, p. 277. A restrictive covenant whereby the beneficial use of land by the owner is restricted is an encumbrance within the covenant against encumbrances. 7 Thompson on Real Property, 1962 Replacement, Covenants, Deeds, § 8133, p. 272. 20 Am. Jur. 2d, Covenants, Conditions and Restrictions, § 90, p. 653.

From a reading of the first five paragraphs of the complaint, it would appear that plaintiff may have intended to allege a cause of action against the defendant for a breach of the covenant against encumbrances in the deed from defendant to plaintiff. However, there is no allegation in the complaint as to the covenant against encumbrances in the deed or any alleged breach thereof, nor is there any allegation that the restrictive covenants referred to in paragraph 5 imposed a burden rather than a benefit, or of the way plaintiff is damaged by any breach of the covenant against encumbrances. Thus the complaint fails to allege a cause of action for a breach of the covenant against encumbrances.

Paragraphs 6, 7, 8 and 9 seem to undertake to allege a cause of action upon the grounds that the house which was on the property at the time of the conveyance from the defendant to plaintiff was located in violation of certain restrictive covenants which were applicable to the property. However, there is no allegation as to any contract or agreement or representation on the part of the defendant that restrictive covenants had not been violated, and therefore the complaint fails to state a cause of action based on the alleged violation of the restrictive covenant.

It is not clear what plaintiff intended by the allegations in paragraph 7 because what is said there seems to be irrelevant to the other allegations. There is no effort to allege fraud on the part of the defendant by reason of its alleged knowledge of the violation of the restrictive covenants.

If so advised, plaintiff may apply for leave to amend.

The judgment sustaining the demurrer is

Affirmed.

MallaRD, C.J., and Britt, J., concur.