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Issue  3  Article  6
Published:  10/1/1995

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Statute of Limitations to enforce Restrictive Covenants : Allen v. Sea Gate Ass’n, Inc. (No. COA94-913)
Chris Burti, Regional Vice President and Legal Counsel

The North Carolina Court of Appeals handed down an opinion in August the main thrust of which was to further define what constitutes an unenforceable assessment provision of a set of restrictive covenants. However, in an interesting aspect of the opinion, authored by Honorable John B. Lewis Jr., the Court held that an action to enforce a restrictive covenant was governed by the six year period of limitation under NCGS Sec. 1-50(3). The Court relied on the holding in Hawthorne v. Realty Syndicate, Inc., 43 N.C. App. 436 (1979), aff’d, 300 N.C. 660 (1980) in which that court found an action enforceable when filed within six years of the violation, reasoning that a restrictive covenant was a negative easement, and that easements are incorporeal hereditiments and therefore NCGS Sec. 1-50(3) applied. The Court in this decision found that summery judgment was appropriate as to violations occurring outside of the six year period.

It would seem that this holding would also apply to violations of setbacks on plats and even potentially to encroachments in reserved easements. It should be noted that the holding applies the six year limitation to an action to enforce a violation and not as to the validity of the restriction itself. As a result if a violation had occurred more than six years prior to the action to enforce the restriction, it would then be permitted to remain but if the old violation ceased and a new violation occurred while the restrictions were viable it seem that the statute should begin to run anew from the time of the subsequent violation.

An interesting question arises from the reasoning presented. If a prescriptive easement takes twenty years to ripen, can it be cut off by six years of obstruction?


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