Enforceability of Restrictive Covenants

Irby v. Freese, No. COA09-1224 (N.C. App. 2010). Mecklenburg County. In this case, Defendants purchased property on Queens Road in Charlotte and began a large addition to their home consisting of a two-story living area and a garage with a living area above it. The defendants constructed the addition within the 50-foot setback area established by certain restrictive covenants applicable to Defendants’ lot. Defendants received copies of the restrictive covenants, including the setback restrictions, at their closing, but the restrictions were not contained in Defendants’ deed, and Defendants apparently did not have actual knowledge of the restrictions. Notably, Defendants did not consult an attorney or an architect before commencing construction. Plaintiffs, who own a neighboring lot to Defendants, first became aware of Defendants’ construction in December 2007, confirmed that it was a violation of the restrictive covenants in January 2008, and filed suit in mid-February 2008. The Myers Park homeowners’ association joined as a plaintiff in funding the litigation. Judge Jesse B. Caldwell held that the suit was barred by laches. The Court of Appeals reversed, finding that the two-month delay between first noticing the construction and filing suit was not only not evidence of delay, but to the contrary, was evidence that the Plaintiffs acted promptly in taking action and filing suit.