BEECH MOUNTAIN PROPERTY OWNERS'ASS'N v. Seifart

269 S.E.2d 178 (1980) 48 N.C. App. 286

BEECH MOUNTAIN PROPERTY OWNERS' ASSOCIATION, INC., and Eugene Bradshaw and Virginia D. Bradshaw, Plaintiffs,
v.
Curt SEIFART, Sr. and Harriette N. W. Seifart, Defendants.
BEECH MOUNTAIN PROPERTY OWNERS' ASSOCIATION, INC., and Charles E. Black, Plaintiffs,
v.
Fred J. COLLINS, Jr., and Shirley Collins, Defendants.
BEECH MOUNTAIN PROPERTY OWNERS' ASSOCIATION, INC., and John Dorrier and Nancy Dorrier, Plaintiffs,
v.
Thomas F. MOORE, Jr., and George K. Cutter, Defendants.

No. 7924DC900.

Court of Appeals of North Carolina.

August 19, 1980.

Finger, Watson & di Santi by C. Banks Finger and Anthony S. di Santi, Boone, Poyner, Geraghty, Hartsfield & Townsend by John J. Geraghty and Cecil W. Harrison, Jr., Raleigh, for plaintiffs-appellants.

Clement & Miller by Paul E. Miller, Jr., Boone, Smith, Moore, Smith, Schell & Hunter by David M. Moore, II, Greensboro, for defendants-appellees.

PARKER, Judge.

The issue raised by this appeal is whether the covenants upon which the Property Owners' Association relies to assess defendants are sufficiently certain and definite to be enforceable. We hold that they are not. Accordingly, we do not address the question whether the covenants run with the land so as to be enforceable by parties other than the original grantor, Carolina Caribbean Corporation.

It is, of course, true that "[a] grantee, who accepts a deed containing otherwise valid covenants purporting to bind him, thereby becomes bound for the performance of such covenants." Cummings v. Dosam, Inc., 273 N.C. 28, 31, 159 S.E.2d 513, 516 (1968). However, just as covenants restricting the use of property are to be strictly construed against limitation on use, Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892 (1954), and will not be enforced unless clear and unambiguous, Hullett v. Grayson, 265 N.C. 453, 144 S.E.2d 206 (1965), even more so should covenants purporting to impose affirmative obligations on the grantee be strictly construed and not enforced unless the obligation be imposed in clear and unambiguous language which is sufficiently definite to guide the courts in its application. While counsel on this appeal have cited no decision of our own Supreme Court, and our own research has disclosed none, which has discussed the standard properly applicable in determining whether a particular covenant involving future assessments is sufficiently definite to be enforceable, courts of other states which have considered the question have stressed the necessity for some ascertainable standard contained in the covenant by which the court can objectively determine both that the amount of the assessment and the purpose for which it is levied fall within the contemplation of the covenant. Compare Kell v. Bella Vista Vil. Prop. Owners Ass'n., 258 Ark. 757, 528 S.W.2d 651 (1975) and Rodruck v. Sand Point Maintenance Commission, 48 Wash.2d 565, 295 P.2d 714 (1956) with Peterson v. Beekmere, Incorporated, 117 N.J.Super. 155, 283 A.2d 911 (1971). Obviously, a covenant which purports to bind the grantee of land to pay future assessments in whatever amount to be used for whatever purpose the assessing entity might from time to time deem desirable would fail to provide the court with a sufficient standard.

Examining the three covenants at issue in the present case, we find no sufficient standard by which to measure the defendants' liability for assessments. None of the covenants identifies with particularity the property to be maintained. The first covenant, being the one incorporated by reference into the deeds for lots in the Ski-Way Tract of the Beech Mountain subdivision, refers to "reasonable annual assessment charges for road maintenance and maintenance of the trails and recreational areas," and the two other covenants refer more generally to assessments for "road maintenance." Although the parties stipulated that as of 2 May 1979 the Property Owners' Association was maintaining fifty-eight miles of gravel roads within the resort complex, as well as hiking trails, nothing in the record reflects that any of the defendants could have known at the time they accepted their deeds what roads or trails would be required to be maintained with revenues from assessments. Even more important is that there is nothing in the covenant which can guide the court should it be called upon to review the determination by the Property Owners' Association as to what particular roads and trails it elects to maintain. Two of the covenants refer to assessment charges for "recreational fees" or "recreational areas," but again no specific recreational areas are either described or referred to which are to be maintained. Even though Carolina Caribbean Corporation owned certain recreational facilities at Beech Mountain at the time the defendants acquired title to their lots, the covenants do not refer specifically to those facilities or require that the assessments be used to maintain those particular facilities.

Further, even if it be assumed that the defendants and others who purchased property at the time the original Articles of Incorporation of the Beech Mountain Property Owners' Association were on record had constructive notice of their contents, the statement in those articles of the purposes for which the Association was organized is equally as indefinite as the covenants themselves. They recite in pertinent part that the Association was organized for the purpose of establishing "reasonable annual assessment charges for road maintenance and maintenance of the trails and recreational areas," and to serve as adviser to Carolina Caribbean Corporation "on desires of the property owners for: road improvements, skiing, golfing, swimming, private club and/or any other type recreational programs." The subsequently adopted amendment to the Articles of Incorporation states the purposes in far greater detail, but such amendment cannot make definite the assessment covenants which were incorporated into defendants' deeds years before the amendment was adopted. Indeed, the very breadth of corporate purposes stated in the amendment and the wide-ranging activities engaged in by the Property Owners' Association under authority of its amended charter furnish strong evidence that there is no clearly defined limiting standard by which the court can determine whether the assessment made in any particular year against any particular property owner is authorized both as to amount and purpose by the covenant applicable to his property.

It may well be that the Property Owners' Association performs a desirable function and that its activities enhance the value of all properties within its area of service. That, however, furnishes no sufficient basis for the court to decree enforcement of the assessments here in question.

AFFIRMED.

MORRIS, C. J., and HILL, J., concur.