Skinner, William P., Jr.

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University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 33 | Number 1 Article 1812-1-1954Real Property -- Personal Restrictive BuildingCovenantsWilliam P. Skinner Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationWilliam P. Skinner Jr., Real Property -- Personal Restrictive Building Covenants, 33 N.C. L. Rev. 131 (1954).Available at: http://scholarship.law.unc.edu/nclr/vol33/iss1/181954]did not discuss the exception relating to part owners provided in Sec-tion (e) of the regulations since the plaintiff was not even an employee.In spite of the clear and helpful regulations supplementing the defi-nition of a "bona fide executive" employee, it remains difficult to drawa line with all true executives falling on one side and all remainingemployees falling on the other. All of the requirements of the Adminis-trator's definition must be met. The requirement that will probablycontinue to be most troublesome deals with nonexempt work tolerance.The courts must still decide on the particular facts of each case whetherwork is "directly and closely related," and, if it is not, then whether theamount of that work exceeds the tolerance.F. KENT BURNSReal Property-Personal Restrictive Building CovenantsAlthough the case of Julian v. Lawton' presented for decision a verynarrow question on the matter of restrictive building covenants andperhaps turned on an agency question as much as on the constructionof the covenant involved, the case is of interest because of the growth ofresidential subdivisions in the last two decades and the almost universalinclusion of certain restrictions imposed by means of covenants in thedeeds given for the lots in these developments.2 In this case the useof the term "personal" as applied to a valid restrictive building covenantis believed to be unique.In the principal case, the grantor, in conveying certain lands in areal estate subdivision which he was promoting, inserted in the deedscertain restrictive covenants one of which stated "that no dwelling houseor other building shall be erected on the tract until the type and exteriorlines of the building to be erected shall have been approved by [thegrantor] or by an architect selected by him .... ,,3 The court held thatthe covenant was personal to the grantor and that both the restrictionand the agency of the architect ceased to be effective at the death of thegrantor.By definition, "a real covenant is one having for its object somethingannexed to, inherent in or connected with land or other real property" ;4it is a covenant that is said to "touch and concern" the land.5 These1240 N. C. 436, 82 S. E. 2d 210 (1954)."'The number of decisions in comparatively recent years involving the validity,construction and effect of agreements restricting the use of real property indicatethe increasing use being made of them. This reflects, it has been aptly commented,the expansion of the law to meet the demands of home owners for a protectionadequate to the more crowded conditions of modem life." TIFFANY, LAW OF REALPRoPEarY §858 (3rd ed. 1939).'Julian v. Lawt6n, 240 N. C. 436, 437; 82 S. E. 2d 210, 211 (1954).'14 Am. JuR., Covenants § 19, at p. 495 (1938); 21 C. J. S., Covenants § 22(1940).5 TIFFANY, LAW OF RF.AL PROPERTY § 854; at p. 455 (3rd ed. 1939).NOTES AND COMMENTSNORTH CAROLINA LAW REVIEWcovenants "run with the land" and are enforceable for the duration ofthe estate without regard to the personalities involved in any specifictransfer or sale.6 Personal covenants are between individuals, bindingonly the covenantor and enforceable by the covenantee; their duration issaid to be only the life of the covenantee.7The North Carolina Supreme Court has denominated as real cove-nants the following: covenant of quiet enjoyment, covenant of warranty,8covenant securing a right of way with an annual payment, covenantthat an existing canal shall be maintained, 10 covenant to build and main-tain a stairway," and a covenant for a railroad to maintain a flag sta-tion.1 2 The court has also included in this category covenants containingbuilding and occupancy restrictions such as: those limiting the numberof residences per tract; limiting ownership to members of the "whiterace"; forbidding factories, manufacturing establishments, commercialendeavors, tenements, apartment houses, saloons, sanatoriums, hos-pitals; requiring a certain minimum cost per dwelling; requiring housesa certain distance from a road or street; prohibiting the keeping of cer-tain animals, and other like restrictions.13Personal covenants in North Carolina cover such agreements ascovenants of seisin, 14 covenants against encumbrances, 15 and, where noo 14 AM. JuR., Covenants § 19 (1938); 21 C. J. S., Covenants §§ 54, 74 (1940).14 Am. JuR., Covenants § 27 (1938); TIFFANY, LAW OF REAL PROPERTY § 854(3rd ed., 1939).' "The covenant for quiet enjoyment and the covenant for warranty are in theireffect the same . . . in some cases the courts have noted minor distinctions betweenthem . . . they are generally regarded as substantially equivalent or identical inoperation and effect." AmERIcAN LAW OF REAL PROPERTY § 12.129 (1952) ; quietenjoyment: Wiggins v. Pender, 132 N. C. 628, 44 S. E. 362 (1903) ; Markland v.Crump, 18 N. C. 94, 27 Am. Dec. 320 (1834); warranty; Wiggins v. Pender,supra; Ravenel v. Ingram, 131 N. C. 549, 42 S. E. 967 (1902); RAWLE, COVENANTSFOR TiaTE § 213 (5th ed. 1887) ; TIFFANY, REAL PROPERTY § 1022 (3rd ed. 1939).Cf., Smith v. Ingram, 130 N. C. 100, 40 S. E. 984 (1902).Raby v. Reeves, 112.N. C. 688, 16 S. E. 760 (1893).10 Norfleet v. Cromwell, 64 N. C. 1 (1870).Ring v. Mayberry, 168 N. C. 563, 84 S. E. 846 (1915).1 Parrott v. Railroad, 165 N. C. 295, 81 S. E. 348 (1914).13 These citations are representative only and do not in each specific case holdthe covenant to be real: residences per tract: Stroupe v. Medernach, 196 N. C.305, 145 S. E. 925 (1928); Charlotte Consol. Construction Co. v. Cobb, 195 N. C.690, 143 S. E. 522 (1928); "white race": Vernon v. R. J. Reynolds Realty Co.,226 N. C. 58, 36 S. E. 2d 710 (1945); Stroupe v. Medernach, supra; factories,tenements, hospitals, etc.: Huffman v. Johnson, 236 N. C. 225, 72 S. E. 2d 236(1952) ; Bailey v. Jackson, 191 N. C. 61, 131 S. E. 567 (1925); minimum cost:Pepper v. West End Development Co., 211 N. C. 166, 189 S. E. 628 (1936);Huntington v. Dennis, 195 N. C. 759, 143 S. E. 521 (1928). These and otherrestrictions received approval by reference in Johnson v. Garrett, 190 N. C. 835,130 S. E. 835 (1925), one of the "Myers Park cases." For earlier cases on thisplanned development, see: Myers Park Homes Co. v. Falls, 184 N. C. 426, 115S. E. 184 (1922) ; and Stephens Co., v. Myers Park Homes Co., 181 N. C. 335,107 S. E. 233 (1921). See TIFFANY, op. cit. supra note 4, § 859."' Newbern v. Hinton, 190 N. C. 108, 129 S. E. 181 (1925); Eames v. Arm-strong, 146 N. C. 1, 59 S. E. 165 (1907) ; Ravenal v. Ingram, 131 N. C. 549, 42S. E. 967 (1902) ; AmERICAN LAW OF REAL PROPERTY, § 12.127 (1952) ; RAWLE,[Vol. 331954]scheme or plan for development was present, certain other covenantsconcerning the use of land 6 and Negro occupation.17In other jurisdictions, the search for unenforced covenants similarto the principal case has revealed covenants requiring a lightwell to beleft between buildings,' 8 prohibiting a grocery business on the land,' 9forbidding manufacturing on the premises, 20 restricting location andcharacter of improvements to be made,2' and requiring a certain set backdistance for all buildings.2 2 All of these were considered personal andeach lacked either similar restrictions in the deeds for other lots in thedevelopment or a scheme of development, both of which were present inthe principal case.Still another case23 reveals a covenant prohibiting a mercantile busi-ness from being conducted on the property. The court here refused toenforce the covenant after the grantors had disposed of their nearbymercantile business. The restriction was considered personal to protectthe grantor's business and served no purpose after the sale.The combination of (1) a building restriction, (2) an area developedaccording to a "scheme," and (3) a refusal to enforce because thecovenant was personal has not been found outside the principal case.As seen above, cases may have all but one of the features of Julian v.Lawton.The case would seem to be well decided and in line with the prevailingAmerican law on personal covenants.2 4  Certainly little argument canbe given the court on its decision that the covenant was personal, prin-cipally because of the use of words in the deed indicating that the grantoras an individual was to be satisfied. Such phrases used by the court as"without existence or meaning apart from the brain of" the grantor,and "his aesthetic sense," would seem a fair interpretation of the lan-guage of the deeds. However, in view of the defense advancd by thegrantor's personal representative and heirs, it would seem safe to assumethat the covenant was expected to run after the grantor's death. Theop. cit. supra note 4, § 205; TIFFANY, op. cit. supra note 4, § 205.15 Thompson v. Avery County, 216 N. C. 405, 5 S. E. 2d 146 (1939) ; Lockhartv. Parker, 189 N. C. 138, 126 S. E. 313 (1924) ; AmERICAN LAW OF REAL PROPERTY,§ 12.128 (1952) ; RAWLE, op. cit. supra note 4, § 212; TIFFANY, op. cit. sutpra note 4,§ 1022.6 Craven County v. First Citizens Bank & Trust Co., 237 N. C. 502, 75 S. E.2d 620 (1953) ; Sheets v. Dillon, 221 N. C. 426, 20 S. E. 2d 344 (1942)."7 Eason v. Buffaloe, 198 N. C. 520, 152 S. E. 496 (1930).18Heimburge v. State Guaranty Corp., 116 Cal. App. 380, 2 P. 2d 998 (1931)." Shade v. O'Keeffe, 260 Mass. 180, 156 N. E. 867 (1927)."10 Harrington v. Joyce, 316 Mass. 187, 55 N. E. 2d 30 (1944).J1 jennings v. Baroff, 104 N. J. Eq. 132, 144 Atl. 717 (1929)."Baker v. Henderson, 137 Tex. 266, 153 S. W. 2d 465 (1941)."Allison v. Greear, 188 Va. 64, 49 S. E. 2d 279 (1948)." 21 C. J. S. Covenants § 33 (1940).NOTES AND COMMENTSNORTH CAROLINA LAW REVIEWcourt has thus removed one of the restrictions found in every deed inthat particular real estate development.Since more specific or definite language in the deeds25 and the useof certain legal devices 26 can do much to clear up any doubt as to thereal or personal nature of a restrictive building covenant, it is possiblethat in the future the careful draftsman can obviate the necessity for thecourt's having to designate such a covenant as personal.WILLIAM P. SKINNER, JR.Torts-Animals--Liability of Owner for Trespass ofDogs While HuntingIn a recent North Carolina decision,1 the court held that the ownerof dogs which had, damaged crops, fences, and cattle of plaintiff in thecourse of fox' hunts, was liable in trespass for damage done, althoughthe hunter himself did not enter the plaintiff's property.Plaintiff and defendant owned adjoining farms in Guilford County.The defendant, during a period of three years preceding the action, kepta pack of seven to ten foxhounds that he hunted across plaintiff's landat frequent intervals, in spite of plaintiff's repeated protests. Plaintiff'spasture lay between two creeks. The fox was wont to dash between thecreeks during the hunt, and when fatigued by this exercise would dashin among the herd of cattle with the yelping pack in hot pursuit. Where-upon, the cattle would stampede, tearing down partition fences, cuttingthemselves on the barbed wire, and generally working themselves intowhatever is the bovine equivalent of advanced neurosis.Generally, the owner of domestic animals which stray onto propertyof another is liable in damages for their trespass.2-" It is suggested that the following might be sufficient: "... shall have beenapproved by the grantor or his successors in interest, or by an architect selectedby him or his successors in interest." Also, the subjective nature of the restrictioncould be made objective by listing architectural types not desired, i.e., ranch,modern, colonial, etc.6 See Huntington Palisades P. 0. Corp. v. Metropolitan Finance Corp., 180 F.2d 132 (9th Cir. 1950), wherein the covenant read: "No building or other structureshall be erected or the erection thereof begun on said premises until the plans andspecifications thereof shall have been first presented to and approved in writing bythe Seller or by the property owners corporation, herein referred to, as to outwardappearance 'and design." The result desired by the grantor in the principal casewas accomplished here by means of the property owners' corporation which eachgrantee joined by acceptance of the deed.'Pegg v. Gray, 240 N. C. 548, 82 S. E. 2d, 757 (1954).2 E.g., Fox v. Koehnig, 190 Wis. 528, 209 N. W. 708 (1926); RESTATEMSNT,TORTs § 504 (1934) ; HALSBuRY's LAws, Animals § 935 (2d ed. 1931) ; 3 C. J. S.,Animals § 185 (1936) ; Accordingly, owners have been held strictly liable for thetrespasses of their turkeys: McPherson v. James, 69 Il. App. 337 (1896) ; Tate v.Ogg, 170 Va. 95, 195 S. E. 496 (1938). And their chickens: Adams Bros. v. Clark,189 Ky. 279, 224 S. W. 1046 (1920). Trespassing cattle, sheep, goats, horses,mules, oxen, and swine are governed in practically all jurisdictions by detailedstatutes, which determine "legal fences," liability for trespass, local option as to[Vol. 33

Real Property -- Personal Restrictive Building Covenants

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Real Property -- Personal Restrictive Building Covenants

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