{ "id": 4166800, "name": "MICHAEL SCHWARTZ and DAWN GRAY, Plaintiffs v. BANBURY WOODS HOMEOWNERS ASSOCIATION, INC., Defendant", "name_abbreviation": "Schwartz v. Banbury Woods Homeowners Ass'n", "decision_date": "2009-05-05", "docket_number": "No. COA08-964", "first_page": "584", "last_page": "599", "citations": [ { "type": "official", "cite": "196 N.C. App. 584" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "616 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633474, 12633475, 12633476 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0235-01", "/se2d/616/0235-02", "/se2d/616/0235-03" ] }, { "cite": "461 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793216, 793197, 793171, 793173, 793241 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0419-02", "/nc/341/0419-01", "/nc/341/0419-05", "/nc/341/0419-04", "/nc/341/0419-03" ] }, { "cite": "458 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "216" }, { "page": "216", "parenthetical": "omission in original" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913943 ], "year": 1995, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0155-01" ] }, { "cite": "1991 N.C. Sess. Laws 895", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "1999 N.C. Sess. Laws 1772", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "2001 N.C. Sess. Laws 1019", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "424 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "662", "parenthetical": "internal quotation marks omitted" }, { "page": "663" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525358 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "682", "parenthetical": "internal quotation marks omitted" }, { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0679-01" ] }, { "cite": "178 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "828" } ], "opinion_index": 0 }, { "cite": "278 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559708 ], "year": 1971, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0095-01" ] }, { "cite": "156 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1967, "pin_cites": [ { "page": "238" }, { "page": "239", "parenthetical": "internal quotation marks omitted" }, { "page": "238-39", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "271 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563495 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "268" }, { "page": "268" }, { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0264-01" ] }, { "cite": "359 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800229, 3793893, 3794537, 3799052, 3804845, 3795663, 3804149, 3798264, 3796825 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0631-01", "/nc/359/0631-07", "/nc/359/0631-05", "/nc/359/0631-04", "/nc/359/0631-08", "/nc/359/0631-03", "/nc/359/0631-06", "/nc/359/0631-02", "/nc/359/0631-09" ] }, { "cite": "581 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188340 ], "year": 2003, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0518-01" ] }, { "cite": "610 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "291" }, { "page": "293" }, { "page": "293" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471863 ], "weight": 3, "pin_cites": [ { "page": "582" }, { "page": "585-86" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0579-01" ] }, { "cite": "274 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "179" }, { "page": "179", "parenthetical": "\"[E]ach part of the covenant must be given effect according to the natural meaning of the words, provided that the meanings of the relevant terms have not been modified by the parties to the undertaking.\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563796 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "71" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0064-01" ] }, { "cite": "356 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "319 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4747394 ], "year": 1987, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0589-01" ] }, { "cite": "159 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "517" } ], "opinion_index": 0 }, { "cite": "273 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574316 ], "year": 1968, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0028-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "515 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "350 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132244 ], "year": 1999, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0567-01" ] }, { "cite": "186 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "280 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572831 ], "year": 1972, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0513-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470258 ], "year": 1998, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0729-01" ] } ], "analysis": { "cardinality": 1307, "char_count": 38187, "ocr_confidence": 0.743, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4128063064680605 }, "sha256": "cd01f87b53c1440aa5c2a0dfbf8b3b367c1c31820c0339f8b8b90889f622f370", "simhash": "1:a660e13e2c4e2646", "word_count": 6121 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and BEASLEY concur." ], "parties": [ "MICHAEL SCHWARTZ and DAWN GRAY, Plaintiffs v. BANBURY WOODS HOMEOWNERS ASSOCIATION, INC., Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nMichael Schwartz and Dawn Gray (collectively \u201cplaintiffs\u201d) appeal from orders denying their motions for a temporary restraining order, a preliminary injunction, and partial summary judgment, and granting defendant Banbury Woods Homeowners Association\u2019s motion for summary judgment. For the reasons discussed below, we affirm.\nOn 20 August 1985, the Declarations of Covenants, Conditions and Restrictions (\u201cCC&Rs\u201d) for defendant and the Banbury Woods Subdivision were recorded in the Wake County Register of Deeds. When it was first recorded in 1985, Article XIV of the CC&Rs provided as follows:\nParking. Adequate off-street parking shall be provided by the owner of each lot for the parking of motor vehicles owned by such owner, and owners of lots shall not be permitted to park their automobiles on the streets in the development. Owners of lots shall not be permitted to park boats, trailers, campers and all other similar property on the streets in the development, and such property shall be parked in a garage or screened area.\n(Emphasis added.) On 17 August 2005, Amendments to the 1985 CC&Rs were recorded, which modified the last sentence of Article XIV as follows:\nOwners of lots shall not be permitted to park boats, trailers, campers and all similar property on the streets in the development, and such property shall be parked in a garage or screened area which is approved by the Architectural Committee in accordance with rules governing such items adopted by the Board of Directors of the Association.\n(Emphasis added.)\nOn 29 December 2005, plaintiffs became the record owners of the property located at 1500 Acres Way in Raleigh, North Carolina, in the Banbury Woods Subdivision. Plaintiff Gray is also the titleholder of a 2004 Tioga self-propelled motor home, which plaintiffs use \u201cfor overnight travel as a portable hotel room\u201d and \u201cas an extra automobile, in the same way that someone might use a truck or large passenger van.\u201d Plaintiffs also use their motor home for extra refrigerator and freezer space, and as a \u201c \u2018granny unit,\u2019 a place for visitors to sleep where they have their own \u2018apartment\u2019 accommodations.\u201d In May 2006, \u201cafter completing improvements that provided additional parking space next to the garage as well as driving access to the concrete pad [behind the garage],\u201d plaintiffs began parking their motor home on their Banbury Woods property.\nOn 6 June 2006, defendant\u2019s Architectural Committee Chairman Dick Brady spoke with plaintiff Schwartz about plaintiffs\u2019 decision to park their motor home on their Acres Way property. The next day, Brady and plaintiff Gray corresponded by e-mail regarding Brady\u2019s assertion that plaintiffs\u2019 motor home was subject to the parking restrictions identified in Article XIV of the CC&Rs. In his 7 June 2006 e-mail, Brady stated, \u201cI don\u2019t believe we interpret the covenants to say that you can never have your boat/trailer/RV parked in your driveway but that it cannot be parked there as a means of permanent storage.\u201d Brady advised, \u201cI don\u2019t see any way that you could screen something as big as an RV with shrubs so, if you want to store the vehicle in the neighborhood, I think fencing is the only viable option.\u201d \u201cThe bottom line, I think, is that you need to either enclose your RV with a fence or appeal to the Board.\u201d \u201cYou would need to convince the Board that [(a)] your RV does not violate the covenants, or [(b)] you should be exempt from the existing restrictions or [(c)] you should be allowed to screen your RV by other than the currently accepted methods.\u201d\nOn 11 October 2006, Brady sent a letter to plaintiffs stating, \u201cIt has now been 4 months since our original discussion and nearly 2 months since our follow-up discussion regarding the screening of your RV.\u201d \u201cAs the Architectural Committee has still not received a request for approval from you regarding your screening plan, it is my obligation to the Association to formalize this issue by way of written documentation and establishment of a timeline for compliance.\u201d Brady requested that plaintiffs submit a Request for Architectural Approval for their planned screening method no later than 10 November 2006, and stated that failure to comply \u201cmay result in fines being levied by the Association.\u201d\nPlaintiffs submitted a Request for Architectural Approval to construct a \u201cprivacy fence\u201d on 1 November 2006. On 13 November 2006, the Architectural Committee denied plaintiffs\u2019 request, stating, \u201cFence architecture is fine but may not provide significant screening. The Board has requested that you delay any efforts to screen your RV until further notice.\u201d In a letter to plaintiffs following the Architectural Committee\u2019s denial, Brady wrote, \u201cUntil such time as you receive further direction from the Architectural Committee and/or the Board of Directors, you will not be liable for or subject to any fines or other punitive actions specific to the storage and screening of your RV.\u201d\nCorrespondence continued on this issue during Spring 2007 between plaintiffs and both defendant\u2019s President Edward C. Lingenheld, and defendant\u2019s Architectural Committee then-Chairman Howard A. Goodman. On 17 September 2007, Goodman sent a letter to plaintiffs stating, \u201cThe only solution that appears to have a chance of meeting screening requirements per our Covenants would involve a plantings approach. . . . Therefore I am writing to ask that you submit a Request for Approval (RFA) proposal of your own to resolve this issue.\u201d Goodman requested that plaintiffs submit their proposal by 30 September 2007 in order to avoid \u201can official notice of violation of covenant from [defendant\u2019s] independent inspector, which if ignored could result in monetary fines, as stipulated by [defendant\u2019s] Covenants and Resolution 1993-1, Rev. 1.\u201d On 28 September 2007, plaintiffs sent a letter to Goodman requesting an extension until the end of October 2007 to complete their research and submit their proposal.\nOn 2 October 2007, defendant\u2019s covenants inspector sent a Covenants Violation Notice to plaintiffs stating that \u201cproper screening is required for the camper parked behind your home\u201d and that the manner in which they parked the motor home \u201cd[id] not appear to be in compliance with Banbury Woods Covenants, Article XIV.\u201d The covenants inspector requested that plaintiffs take action \u201cwithin the next 30 days\u201d to correct the violation. On 4 October 2007, Goodman sent a letter to plaintiffs \u201cconfirming] that [they] currently have until October 23, 2007, to submit to [sic] an Architectural Review Request with proposal for adequate screening of your recreational vehicle (RV).\u201d Goodman continued, \u201cIf your proposal is submitted any later than that, we cannot guarantee a decision and response before November 1, 2007, by which time our independent covenant violations inspector will have conducted her monthly inspection and may have to issue a second violation notice.\u201d Goodman further wrote:\nAccording to Banbury Woods Covenants, and in particular Policy Resolution 1993-1 Rev. 1, fines may be levied. For your information, this Policy Resolution states that the fine for a first noncompliance or violation is to be \u201cnot in excess of Fifty Dollars. [\u201d] Second non-compliance or violation: \u201cnot in excess of One Hundred Dollars.\u201d Third and subsequent non-compliance or violation (following homeowners\u2019 receipt of first and second Covenants Violation Notices) is \u201cnot to exceed One Hundred Dollars for each week and/or any portion of a week of continued violation or non-compliance.\u201d . . .\nReceipt of your Architectural Review request and proposal will, in my opinion, effectively \u201cstop the clock\u201d on penalties such as fines .at least until the outcome of the committees\u2019s review.\nOn 23 October 2007, plaintiffs\u2019 counsel sent a letter to Lingenheld and Goodman stating that plaintiffs did not believe they were in violation of the CC&Rs and asserting that plaintiffs would \u201cnot be submitting any request for Architectural Committee approval.\u201d On 5 November 2007, defendant\u2019s Covenants Inspector sent a Covenants Violation Second Notice to plaintiffs, citing plaintiffs\u2019 continued violation of Article XIV. The notice stated that plaintiffs needed to provide a screening proposal and if the matter was not \u201ctaken care of within the requested time frame[,] further action will be pursued.\u201d\nOn 6 November 2007, Lingenheld sent a letter to plaintiffs advising that, in light of the Covenants Violation Second Notice, \u201cfailure to correct the violation within 7 days will result in the assessment of penalties,\u201d (internal quotation marks omitted), and that plaintiffs will be subject to an \u201cescalating system of fines that would continue until [plaintiffs] have complied with Article XIV regarding the required screening of your RV/Camper.\u201d Lingenheld further stated that fines would not begin to be assessed until plaintiffs had the chance to meet with defendant\u2019s Board of Directors to appeal the matter, and invited plaintiffs to meet with the Board during the week of 26 November 2007. Plaintiffs did not respond to Lingenheld\u2019s 6 November letter.\nOn 30 November 2007, Lingenheld sent a letter to plaintiffs\u2019 counsel advising that defendant\u2019s Board of Directors determined plaintiffs were in violation of Article XTV. Lingenheld stated that the Board \u201cfurther decided to impose a fine of $100.00 per violation in accordance with [N.C.]G.S. \u00a7 47F-3-107.1,\u201d which would be assessed daily beginning 7 December 2007 \u201cuntil [plaintiffs] bring themselves into compliance with the [CC&Rs].\u201d After incurring $400.00 in fines, plaintiffs relocated their motor home to an off-site storage facility.\nPlaintiffs filed a \u201cComplaint and Motion for Rule 65 Relief\u2019 in Wake County Superior Court on 11 December 2007. Plaintiffs sought a declaratory judgment stating that their motor home did not \u201cfall within the purview of Article XIV.\u201d Plaintiffs also asked the court to declare that defendant\u2019s Policy Resolution 2007-1 \u2014 which defined the term \u201cscreened\u201d as used in Article XTV of the CC&Rs \u2014 \u201cand its implementation against [p]laintiffs is an arbitrary action in violation of Chapter 47F.\u201d Plaintiffs further sought a temporary restraining order and preliminary injunction against defendant from imposing any fines or \u201ctaking any punitive actions against [pjlaintiffs for any alleged violation of CC&R Article XIV with regard to [p]laintiff\u2019s motor home\u201d until the matter was heard and decided on the merits.\nOn 17 December 2007, the trial court denied plaintiffs\u2019 motion for a temporary restraining order. On 4 January 2008, the court denied plaintiffs\u2019 motion for a preliminary injunction, and \u201cspecifically [found] that the [p]laintiffs have an adequate remedy at law under the provisions set forth in Chapter 47F of the General Statutes, including without limitation, [N.C.G.S.] \u00a7 47F-3-116.\u201d On 28 January 2008, plaintiffs filed a Motion for Summary Judgment. On 5 February 2008, plaintiffs filed an Amended Motion for Partial Summary Judgment. On 21 April 2008, plaintiffs filed a Second Amended Motion for Partial Summary Judgment.\nOn 11 February 2008, defendant filed its Affirmative Defenses, Motion to Dismiss, Answer and Counterclaim. Defendant sought a permanent injunction \u201cstaying and enjoining the [plaintiffs ... to keep their camper out of the [Banbury Woods] Subdivision unless it is properly screened in compliance with the [CC&Rs].\u201d Plaintiffs filed a reply to defendant\u2019s counterclaim on 25 March 2008. Defendant filed a Motion for Summary Judgment on 22 April 2008.\nOn 1 May 2008, the superior court heard plaintiffs\u2019 Second Amended Motion for Partial Summary Judgment and defendant\u2019s Motion for Summary Judgment. On 13 May 2008, the court entered its order in which it denied plaintiffs\u2019 Second Amended Motion for Partial Summary Judgment and granted defendant\u2019s Motion for Summary Judgment. The court \u201cspecifically [found] that [plaintiffs\u2019 ' Tioga Class C Motor Home falls within the definition of \u2018camper and all similar property\u2019 as stated in Article XTV of the Declaration of Covenants; Conditions and Restrictions for Banbury Woods Subdivision, as amended,\u201d and ordered plaintiffs to comply with Article XIV of the CC&Rs by not parking their motor home on their lot \u201cunless it is in a garage or screened area which is approved by [defendant\u2019s] Architectural Committee in accordance with the rules and regulations governing such items adopted by the [defendant\u2019s] Board of Directors . . . pursuant to Article XIV of the [CC&Rs].\u201d The court further determined that the fines \u201cwere validly assessed and. collected\u201d by defendant. Plaintiffs gave notice of appeal to this Court on 22 May 2008 from the following orders: the 17 December 2007 order denying plaintiffs\u2019 motion for a temporary restraining order; the 4 January 2008 order denying plaintiffs\u2019 motion for a preliminary injunction; and the 13, May 2008 order denying plaintiffs\u2019 Second Amended Motion for Partial Summary Judgment, granting defendant\u2019s Motion for Summary Judgment, and issuing a Mandatory Injunction in favor of defendant.\n\u201c[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). \u201cAn issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.\u201d Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). \u201c[0]n appellate review of an order for summary judgment, the evidence is considered in the light most favorable to the nonmoving party,\u201d see Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999), and the order is reviewed de novo. See Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).\nI.\nThe first issue before this Court is whether plaintiffs\u2019 motor home falls within the definition of \u201ccampers and all similar property\u201d as stated in Article XIV of the CC&Rs. We hold that it does.\n\u201cThe law looks with disfavor upon covenants restricting the free use of land.\u201d Cummings v. Dosam, Inc., 273 N.C. 28, 32, 159 S.E.2d 513, 517 (1968). \u201cBecause restrictive covenants are in derogation of the free and unfettered use of land, they are to be strictly construed in favor of the unrestricted use of property.\u201d Rosi v. McCoy, 319 N.C. 589, 592, 356 S.E.2d 568, 570 (1987). \u201cThe rule of strict construction is grounded in sound considerations of public policy: It is in the best interests of society that the free and unrestricted use and enjoyment of land be encouraged to its fullest extent.\u201d J.T. Hobby & Son, Inc. v. Family Homes of Wake Cty., Inc., 302 N.C. 64, 71, 274 S.E.2d 174, 179 (1981). \u201cEven so, we pause to recognize that clearly and narrowly drawn restrictive covenants may be employed in such a way that the legitimate objectives of a development scheme may be achieved.\u201d Id.\nAlthough restrictive covenants must be strictly construed, \u201cthey should not be construed \u2018in an unreasonable manner or a manner that defeats the plain and obvious purpose of the covenant.\u2019 \u201d Hultquist v. Morrow, 169 N.C. App. 579, 582, 610 S.E.2d 288, 291 (quoting Cumberland Homes, Inc. v. Carolina Lakes Prop. Owners\u2019 Ass\u2019n, 158 N.C. App. 518, 521, 581 S.E.2d 94, 97 (2003)), disc. review denied, 359 N.C. 631, 616 S.E.2d 235 (2005). \u201cIn construing restrictive covenants, the fundamental rule is that the intention of the parties governs, and... their intention must be gathered from study and consideration of all the covenants contained in the instrument or instruments creating the restrictions.\u201d Long v. Branham, 271 N.C. 264, 268, 156 S.E.2d 235, 238 (1967). \u201cHowever, this intention may not be established by parol. Neither the testimony nor the declarations of a party is competent to prove intent.\u2019 \u201d Hultquist, 169 N.C. App. at 585-86, 610 S.E.2d at 293 (quoting Stegall v. Hous. Auth. of Charlotte, 278 N.C. 95, 100, 178 S.E.2d 824, 828 (1971)). Additionally, it is \u201cnot primarily the intention of the parties which the court is seeking, but the meaning of the words at the time and place when they were used.\u201d Angel v. Truitt, 108 N.C. App. 679, 682, 424 S.E.2d 660, 662 (1993) (internal quotation marks omitted). Doubt will be resolved in favor of \u201cthe unrestricted use of property, so that where the language of a restrictive covenant is capable of two constructions, the one that limits, rather than the one which extends it, should be adopted, and that construction should be embraced which least restricts the free use of the land.\u201d Long, 271 N.C. at 268, 156 S.E.2d at 239 (internal quotation marks omitted).\nHere, Article XTV requires that \u201c[a]dequate off-street parking shall be provided by the owner of each lot for the parking of motor vehides owned by such owner,\u201d and property owners \u201cshall not be permitted to park their automobiles on the streets in the development.\u201d However, while the CC&Rs also restrain property owners from parking \u201cboats, trailers, campers and all similar property\u201d on the streets in the development, the CC&Rs further require that \u201cboats, trailers, campers and all similar property\u201d must be parked in'a garage or screened area which is approved by the Architectural Committee in accordance with the governing rules adopted by defendant\u2019s Board of Directors. Thus, if the trial court erred by determining that plaintiffs\u2019 motor home falls within the definition of \u201ccampers and all similar property,\u201d then plaintiffs are exempt from the Article XIV screening requirements for their motor home.\nThe record does not contain any evidence regarding the circumstances surrounding the execution of the CC&Rs or the situation of the parties at the time the CC&Rs were executed. Additionally, there is no evidence before this Court to suggest that the term \u201ccampers\u201d was modified in any way by the drafters to represent anything other than its natural meaning. See Hobby, 302 N.C. at 71, 274 S.E.2d at 179 (\u201c[E]ach part of the covenant must be given effect according to the natural meaning of the words, provided that the meanings of the relevant terms have not been modified by the parties to the undertaking.\u201d). In fact, the only evidence in the record that directly bears on intent \u2014 the affidavit of Alton L. Smith, III, who \u201cexecuted the Declaration in [his] capacity as an owner and Managing Partner of . . . the developer of Banbury Woods Subdivision\u201d \u2014 is evidence that we cannot consider, since the declarations of a party are not competent to prove intent. See Hultquist, 169 N.C. App. at 585, 610 S.E.2d at 293.\nPlaintiffs assert that selected provisions in Chapter 20 of the General Statutes make \u201cclear that [plaintiffs\u2019 motor home] is not a \u2018camper.\u2019 \u201d However, since the statutory provisions upon which plaintiffs attempt to rely were enacted between six and sixteen years after the CC&Rs referring to \u201ccampers and all similar property\u201d were drafted and recorded, we conclude that these statutory provisions are not material to the issue of the drafters\u2019 intent in 1985, and plaintiffs\u2019 reliance on these provisions is misplaced. See 2001 N.C. Sess. Laws 1019-20, ch. 341, \u00a7 1 (enacting N.C.G.S. \u00a7 20-4.01(32a), which defines the terms \u201c[t]ravel trailer\u201d and \u201c[c]amping trailer\u201d); North Carolina Motor Vehicle Repair Act, 1999 N.C. Sess. Laws 1772-73, ch. 437, \u00a7 1 (enacting N.C.G.S. \u00a7 20-354B, which was renumbered as N.C.G.S. \u00a7 20-354.2 at the direction of the Revisor of Statutes and which defines the term \u201c[m]otor vehicle\u201d); 1991 N.C. Sess. Laws 895-96, ch. 449, \u00a7 2 (enacting N.C.G.S. \u00a7 20-4.01 (27)d2, which defines the term \u201c[mjotor home or house car\u201d).\nThus, in the absence of any evidence of intent regarding the meaning of the term \u201ccamper,\u201d we must interpret the term consistent with its natural meaning, and must define the term according to its customary definition in 1985, when the CC&Rs were first drafted and recorded. See Angel, 108 N.C. App. at 683, 424 S.E.2d at 663. The 1985 edition of Merriam-Webster\u2019s Collegiate Dictionary defines \u201ccamper\u201d as \u201ca portable dwelling (as a specially equipped trailer or automotive vehicle) for use during casual travel and camping.\u201d Merriam-Webster\u2019s Collegiate Dictionary 199 (9th ed. 1985) (emphasis added). The same dictionary defines \u201cautomotive\u201d as \u201cself-propelled.\u201d Id. at 118 (9th ed. 1985). Additionally, the term \u201cmotor home\u201d is defined as \u201can automotive vehicle built on a truck or bus chassis and equipped as a self-contained traveling home.\u201d Id. at 775 (9th ed. 1985).\nPlaintiffs maintain that their motor home is \u201cself-propelled,\u201d and assert that they \u201cuse their [motor home] to travel to the grocery store and run errands in addition to camping.\u201d (Emphasis added.)' Further, although the term \u201cmotor home\u201d is not expressly listed as a type of property that is subject to the screening requirements of Article XIV, based on the natural meaning of the term \u201ccamper\u201d at the time the CC&Rs were drafted and recorded, we conclude that it would \u201cdefeat the plain and obvious purposes of [the parking] restriction\u201d to strictly construe Article XIV so as to exclude plaintiffs\u2019 motor home from the ambit of this restrictive covenant. See Long, 271 N.C. at 268, 156 S.E.2d at 238-39 (internal quotation marks omitted). Therefore, we hold that plaintiffs\u2019 motor home falls within the definition of \u201ccampers and all similar property\u201d in Article XIV of defendant\u2019s CC&Rs, and is subject to the screening requirements applicable to such property. Accordingly, we overrule this assignment of error.\nII.\nPlaintiffs next contend the trial court erred by denying their Second Amended Motion for Partial Summary Judgment because defendant\u2019s Resolution No. 2007-1 was enacted for the purpose of \u201ctargeting]\u201d plaintiffs and, so, was arbitrary, capricious, unreasonable, and enacted in bad faith. We disagree.\nOn 8 November 1989, sixteen years prior to plaintiffs\u2019 ownership of their lot in the Banbury Woods Subdivision,'defendant\u2019s Board of Directors \u201crecognize[d] the need for further interpretation\u201d of the term \u201cscreened\u201d as used in Article XIV of the CC&Rs, and so adopted Policy Resolution No. 1990-2, entitled \u201cScreened Area Definition,\u201d which provided that\n\u201cscreened\u201d shall mean an area within the rear lot space of such lot, which area shall be shielded from public view and observation from each adjoining lot by one of the following methodologies:\n1. Planting of shrubbery of at least six feet in height along as many sides of the object to be screened as are necessary to screen such object from view from adjoining lots; or\n2. Erection of a fence of appropriate height, quality, style and location and as approved pursuant to Article V of the [CC&Rs]____\nOn 15 April 2007, defendant\u2019s Board of Directors unanimously adopted Policy Resolution No. 2007-1, which revised and superseded Policy Resolution No. 1990-2 as follows:\n\u201cscreened AREAS\u201d shall mean an area within the rear lot space of such lot. Such \u201cScreened Area\u201d shall be shielded from public view, including the streets within the Subdivision, and observation from each adjoining lot by one of the following methodologies:\n1. Planting of shrubbery of at least six feet in height at the time of planting along as many sides of the object to be screened as are necessary to screen such object from view; Natural-wooded areas are not a substitute for screening, but may be considered part of the screening depending on seasonal density, or\n2. Erection of a fence of appropriate height, quality, style and location and as approved by the Architectural Committee pursuant to Article V and X of the [CC&Rs] ....\n(Emphasis added.)\nViewed in the light most favorable to the nonmoving party, the evidence before us shows that defendant had been addressing concerns about ongoing violations of Article XTV and examining its definition of \u201cscreening\u201d as used in Article XIV prior to plaintiffs\u2019 acquisition of their lot in the Banbury Woods Subdivision at the end of December 2005. For example, the evidence shows that, on 11 January 2004, the Architectural Committee reported to defendant\u2019s Board of Directors that the Banbury Woods Subdivision\u2019s covenant inspector issued five inspection violation notice letters in December 2003 and seven letters in January 2004 to property owners for violations which included \u201ccamper parking,\u201d \u201cboat parking and screening,\u201d \u201cboat screening,\u201d \u201ctrailer parking,\u201d and \u201cboat or trailer parking.\u201d The Board\u2019s minutes from this meeting also included the following entry under \u201cCovenants violations\u201d in its \u201cNew Business\u201d section:\nAn overall review of our enforcement policies and practices began with the issue of boats, trailers], campers and the like that are parked on homeowners\u2019 lots. This type of violation is one of the most often cited by any of our inspectors. The covenants clearly call for such items to be parked in a garaged or screened area, the latter having been defined by the Board via Resolution No. 1990-2. While no documentation has been found, the Board seems to have adopted some practices that may be contrary to the intent of that resolution, e.g., approving visibility from the street, approving natural tree lines between properties as screening and approving plantings that are initially must less than 6 feet in height. The Board discussed whether the appropriate starting point was to rewrite the resolution from scratch or to agree on interpretation and possible amendment of the resolution as currently written. It was suggested and agreed that a good starting point would be to ask for the opinion of the community on what constituted appropriate parking and screening of these items. Dick will create an opinion poll and circulate to the Board for review. Susan will include the poll in her scheduled January publication.\nAs a result, defendant\u2019s 14 March 2004 Board meeting minutes reflect that a Feedback Survey was circulated to the homeowners and returned to the Board, prompting the Board to decide to rewrite the resolution addressing the screening requirements of Article XIV. The 23 May 2004 meeting minutes of defendant\u2019s Board further reflect the ongoing discussion about whether property subject to the screening requirements of Article XTV should be allowed to be visible from the street \u2014 an issue over which the Board \u201cwas split,\u201d until it resolved the issue by adopting Resolution No. 2007-1.\nThus, the evidence in the record demonstrates that defendant\u2019s Board of Directors had been considering and debating this issue for at least two years prior to plaintiffs\u2019 ownership of their lot in Banbury Woods, and plaintiffs have produced no evidence that defendant \u201ctargeted\u201d plaintiffs or acted arbitrarily, unreasonably, or in bad faith when defendant\u2019s Board passed Resolution No. 2007-1. Accordingly, we overrule this assignment of error.\nIII.\nIn its 13 May 2008 order, the trial court decreed that, because \u201c[plaintiffs\u2019 Tioga Class C Motor Home falls within the definition of \u2018camper and all similar property\u2019 as stated in Article XIV of the [CC&Rs],\u201d \u201c[p]laintiffs are hereby ordered to comply with Article XIV of the [CC&Rs] by not parking their Tioga Class C Motor Home on their Lot unless it is in a garage or screened area which is approved by [defendant\u2019s] Architectural Committee.\u201d (Emphasis added.) Plaintiffs contend this injunction was \u201coverly broad and excessive.\u201d We disagree.\n\u201cWhen enforcing a restrictive covenant and restoring the status quo, a mandatory injunction is the proper remedy.\u201d Buie v. High Point Assocs. Ltd. P\u2019ship, 119 N.C. App. 155, 160, 458 S.E.2d 212, 216, disc. review denied, 341 N.C. 419, 461 S.E.2d 755 (1995). \u201c \u2018Whether injunctive relief will be granted to restrain the violation of such restrictions is a matter within the sound discretion of the trial court . . . and the appellate court will not interfere unless such discretion is manifestly abused.\u2019 \u201d Id. at 161, 458 S.E.2d at 216 (omission in original) (quoting 20 Am. Jur. 2d Covenants, Conditions, and Restric-tions \u00a7 313 (1965)).\nPlaintiffs assert that they should be \u201centitled to the same rights to park the[ir motor home] on their property temporarily to clean it, maintain it, prepare it for trips and unload it following trips as long as they do not park it there \u2018as a means of permanent storage,\u2019 \u201d but that they will be prohibited from doing so in light of the mandatory injunction issued by the trial court. To support their assertion, plaintiffs direct this Court\u2019s attention to an e-mail sent to them by defendant\u2019s Architectural Committee then-Chairman Dick Brady on 7 June 2006, in which Brady wrote:\nRegarding your RV, I don\u2019t think I can agree with your examples of existing situationsAdolations although I can readily accept that there may be situations I am unaware of. I don\u2019t believe we interpret the covenants to say that you can never have your boat/trailer/RV parked in your driveway but that it cannot be parked there as a means of permanent storage. I know there was a large RV parked in a driveway behind you. I discussed that with the homeowner and learned that the RV belonged to visiting guests and would be there for a couple of weeks. I did not consider this a problem because it clearly wasn\u2019t being parked there permanently. I am actually not aware of any other RVs that are being stored in Banbury Woods.\nIn other words, plaintiffs assert that defendant\u2019s prior decision to allow another motor home to be parked for a limited time on a homeowner\u2019s lot in the Banbury Woods Subdivision without being \u201cscreened\u201d should allow plaintiffs to park their motor home on their property for limited purposes before and after it is used on trips.\nHowever, we conclude the relief granted in the court\u2019s 13 May 2008 order was the same relief sought by defendant in its 11 February 2008 Counterclaim against plaintiffs, and requires only that plaintiffs comply with the screening requirements of Article XIV of the CG&Rs when parking their motor home on their lot in the Banbury Woods Subdivision. Since the court properly determined that plaintiffs\u2019 motor home is subject to the screening requirements of Article XIV, we conclude that the trial court did not manifestly abuse its discretion by issuing its 13 May 2008 injunction against plaintiffs, which required only that plaintiffs comply with the plain language of the CC&Rs. Thus, we hold the injunctive relief granted by the court to restrain plaintiffs from violating Article XIV was a proper exercise of the court\u2019s sound discretion, and was not overly broad or excessive. Accordingly, we overrule this assignment of error.\nIV.\nFinally, plaintiffs contend the trial court erred by concluding that \u201cthe fines in this case were validly assessed and collected\u201d by defendant. Again, we disagree.\nThe North Carolina Planned Community Act, codified in Chapter 47F of the North Carolina General Statutes, became effective as of January 1, 1999, and \u201capplies to all planned communities created within this State on or after January 1, 1999.\u201d See N.C. Gen. Stat. \u00a7 47F-1-101 (2007); N.C. Gen. Stat. \u00a7 47F-l-102(a) (2007); N.C. Gen. Stat. \u00a7 47F-1-102 official commentary (2007). However, several provisions in the Chapter \u2014 including N.C.G.S. \u00a7 47F-3-107.1, which establishes procedures for imposing fines \u2014 -\u201capply to all planned communities created in this State before January 1, 1999 [with respect to events and circumstances occurring on or after January 1, 1999], unless the articles of incorporation or the declaration expressly provides to the contrary.\u201d N.C. Gen. Stat. \u00a7 47F-l-102(c) (emphasis added).\nN.C.G.S. \u00a7 47F-3-107.1 provides, in part:\nUnless a specific procedure for the imposition of fines or suspension of planned community privileges or services is provided for in the declaration, a hearing shall be held before the executive board or an adjudicatory panel appointed by the executive board to determine if any lot owner should be fined or if planned community privileges or services should be suspended pursuant to the powers granted to the association in G.S. 47F-3-102(ll) and (12). . . . The lot owner charged shall be given notice of the charge, opportunity to be heard and to present evidence, and notice of the decision. If it is decided that a fine should be imposed, a fine not to exceed one hundred dollars ($100.00) may be imposed for the violation and without further hearing, for each day more than five days after the decision that the violation occurs. Such fines shall be shall be [sic] assessments secured by liens under G.S. 47F-3-116.\nN.C. Gen. Stat. \u00a7 47F-3-107.1 (2007) (emphasis added); see also N.C. Gen. Stat. \u00a7 47F-3-116 (2007) (describing the procedures by which a property owners\u2019 association may seek to recover unpaid assessments).\nIn the present case, after defendant\u2019s covenants inspector issued a second violation notice to plaintiffs for failing to comply with the screening requirements of Article XIV for their motor home, defendant\u2019s Board of Directors President Lingenheld sent a letter to plaintiffs advising that \u201c \u2018failure to correct the violation within 7 days will result in the assessment of penalties\u2019 \u201d \u201cas specified in Board Resolution No. 1993-1, Rev. 1.\u201d However, Lingenheld further stated that defendant\u2019s Board of Directors would \u201cnot initiate these fines . . . until [plaintiffs] . . . had a chance to meet with the Board to appeal.\u201d Lingenheld went on to suggest the date of 27 November 2007 for the meeting, and then wrote, \u201cIf that date does not work for you, please suggest one or two alternative dates during the week of November 26.\u201d\nOn 17 November 2007, Lingenheld sent another letter to plaintiffs, in which he indicated that defendant\u2019s Board of Directors \u201chas not received a response to [its] letter dated November 6.\u201d The letter continued that \u201cthe Board would be pleased to meet with you on Tuesday, November 27 to give you the opportunity to appeal the two violation notices you have received regarding screening for your RV/camper. . . . You may appear at that time should you wish to discuss the matter.\u201d\nOn 30 November 2007, Lingenheld sent a letter to plaintiffs\u2019 counsel stating that defendant\u2019s Board of Directors conducted a hearing on 27 November 2007 and determined that plaintiffs were in violation of Article XIV of the CC&Rs. Accordingly, Lingenheld stated that defendant would impose a fine of $100 \u201cin accordance with G.S. \u00a7 47F-3-107.1,\u201d which would be assessed daily beginning 7 December 2007 \u201cuntil [plaintiffs] bring themselves into compliance with the [CC&Rs].\u201d\nSince there is no evidence in the record that Resolution No. 1993-1 was added by amendment to the recorded CC&Rs at the time plaintiffs\u2019 fines were assessed against them in December 2007, we conclude that defendant was bound by statute to assess fines against plaintiffs in accordance with the procedures established in N.C.G.S. \u00a7 47F-3-107.1. See N.C. Gen. Stat. \u00a7\u00a7 47F-l-102(c), 47F-3-107.1. Consequently, after reviewing the evidence before us, we hold that defendant properly complied with the procedural requirements of N.C.G.S. \u00a7 47F-3-107.1 prior to assessing $400 against plaintiffs for violating Article XIV. Accordingly, we overrule this assignment of error.\nIn light of our disposition, we need not consider plaintiffs\u2019 appeal with respect to the trial court\u2019s orders denying plaintiffs\u2019 motions for a temporary restraining order and a preliminary injunction.\nAffirmed.\nJudges BRYANT and BEASLEY concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Linck Harris Law Group, PLLC, by David H. Harris, Jr., for plaintiff s-appellants.", "Jordan Price Wall Gray Jones & Carlton, by Henry W. Jones, Jr., and Brian S. Edlin, for defendant-appellee." ], "corrections": "", "head_matter": "MICHAEL SCHWARTZ and DAWN GRAY, Plaintiffs v. BANBURY WOODS HOMEOWNERS ASSOCIATION, INC., Defendant\nNo. COA08-964\n(Filed 5 May 2009)\n1. Deeds\u2014 restrictive covenants \u2014 motor home \u2014 campers and all similar property\nThe trial court did not err in a declaratory judgment action by concluding that plaintiffs\u2019 motor home fell within the definition of \u201ccampers and all similar property\u201d that was required to be parked in a garage or screened area as stated in Article XIV of the pertinent Declarations of Covenants, Conditions and Restrictions.\n2. Associations; Deeds\u2014 restrictive covenants \u2014 campers and all similar property \u2014 resolution defining \u201cscreened areas\u201d \u2014 plaintiffs not targeted \u2014 enactment not arbitrary, unreasonable or in bad faith\nA subdivision homeowners association did not specifically target plaintiff homeowners and did not act arbitrarily, unreasonably, or in bad faith when it enacted a resolution defining the term \u201cscreened areas\u201d for the purpose of enforcing a restrictive covenant requiring campers and all similar property to be parked in a garage or screened area, and the association could thus enforce the covenant in accordance with the resolution, where the association\u2019s board of directors had been considering and debating this issue for at least two years prior to plaintiffs\u2019 ownership of a lot in the subdivision.\n3. Deeds; Injunction\u2014 restrictive covenants \u2014 mandatory injunction \u2014 not overly broad or excessive\nAn injunction issued by the trial court requiring that subdivision homeowners comply with the screening requirements of a subdivision restrictive covenant when parking their motor home on their subdivision lot was a proper exercise of the court\u2019s discretion and was not overly broad or excessive.\n4. Associations; Deeds\u2014 restrictive covenants \u2014 fines for violation\nA subdivision homeowners association validly assessed and collected $400 in fines pursuant to N.C.G.S. \u00a7 47F-3-107.1, the statute governing procedures for imposing fines in planned communities, against homeowners who violated a subdivision restrictive covenant requiring them to keep their motor home in a garage or approved screened area.\nAppeal by plaintiffs from orders entered 17 December 2007 by Judge Donald W. Stephens, 4 January 2008 by Judge Paul C. Ridgeway, and 13 May 2008 by Judge Orlando F. Hudson, Jr. in Wake County Superior Court. Heard in the Court of Appeals 26 January 2009.\nLinck Harris Law Group, PLLC, by David H. Harris, Jr., for plaintiff s-appellants.\nJordan Price Wall Gray Jones & Carlton, by Henry W. Jones, Jr., and Brian S. Edlin, for defendant-appellee." }, "file_name": "0584-01", "first_page_order": 612, "last_page_order": 627 }