Snug Harbor Property Owners Ass'n v. Curran

WELLS, Judge. Plaintiff contends that the trial court erred in ruling that plaintiff s complaints failed to state claims upon which relief could be granted. We find that the rulings were proper and affirm. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff could prove no set of facts in support of his claim which would entitle him to relief. The rule generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery. Newton v. Insurance Co., 291 N.C. *203 105, 229 S.E. 2d 297 (1976); Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970); Winborne v. Winborne, 41 N.C. App. 756, 255 S.E. 2d 640 (1979), disc. rev. denied, 298 N.C. 305, 259 S.E. 2d 918 (1979). For the purposes of ruling on a motion to dismiss, the well-pleaded material allegations of the complaint are taken as admitted. Grant v. Insurance Co., 295 N.C. 39, 243 S.E. 2d 894 (1978). Recognizing these established rules of pleadings, the question presented on this appeal is whether plaintiff has any right of recovery against defendants under either the restrictive covenants or the association’s charter and by-laws. The first question we address is whether the restrictive covenants are sufficiently certain and definite to be enforceable. 1 [J]ust 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. Property Owner’s Assoc. v. Seifart, 48 N.C. App. 286, 269 S.E. 2d 178 (1980). This is in accord with general principles of contract law, that the terms of a contract must be sufficiently definite that a court can enforce them. 3 Strong’s N.C. Index 3d (1976), Contracts, § 3; 1 Corbin on Contracts, (2nd ed. 1963 and Supplement Part 1, 1980), § 95. In determining the validity of these restrictive covenants, we look first to the purposes for which the dues are to be used. While the records before us appear to be identical, the wording of “Exhibit A — Declaration of Restrictive Covenants” differs in each. In the Williams complaint, paragraph nine of the covenants lists the purposes to which the covenanted dues are to be applied as: “[maintenance and improvement of Snug Harbor *204 and its appearance, sanitation, easements, recreation areas and parks”. The purposes stated in the covenants in the Curran complaint are even less specific. Paragraph 12 of the covenants provides that the dues shall be “[f]or the maintenance of the recreation area and park . . .”. This Court recently held in Seifart, supra, that the restrictive covenants of the Beech Mountain resort area were too vague to be enforceable 2 because: (1) there was no sufficient standard by which to measure liability for assessments, (2) the property to be maintained was not described with particularity, and (3) there was no means by which a court could review a determination by the Property Owners’ Association as to which facilities it chose to maintain. Applying that analysis to this case, we find that although a specific dollar amount of annual dues was stated, the property to be maintained was described with even less particularity, and there is no standard by which the maintenance is to be judged. Accordingly, we find that these restrictive covenants are too vague to be enforceable. Property Owner’s Assoc. v. Seifart, supra. Because we find these covenants to be unenforceably vague, it is not necessary for us to determine whether they are actually personal covenants, or real covenants which run with the land, as they are asserted to be. Seifart, supra. Plaintiff also alleges that defendants are obligated to pay annual dues under the by-laws of the Property Owners Association, which were enacted pursuant to plaintiff’s Articles of Incorporation. G.S. 55A-14. The statement of purpose in plaintiff’s Charter suffers from the same lack of particularity with respect to the *205 properties to be maintained and lack of standards as to maintenance as did the restrictive covenants themselves: Article III The purposes for which the Corporation is organized are to protect the value and usefulness of the property known as Snug Harbor Beach, developed by Yeopim Beach Corporation in Bethel Township, Perquimans County, North Carolina; to establish, maintain and operate nonprofit social and recreational facilities for the mutual advantages to be derived therefrom by the owners of property at Snug Harbor Beach; and to engage in such other activities as may be to the mutual benefit of the owners of property in said subdivision. Plaintiffs by-laws were written with the same invalidating indefiniteness. Although “[bjylaws are, in a sense, a contract among the shareholders”, Robinson, N.C. Corporation Law and Practice (2nd ed. 1974), § 4-9, these fee provisions contain no clear standard by which a court could determine which roads and recreational facilities were to be maintained, or to what degree, and for this reason, they are unenforceable. For the reasons stated, the judgment of the trial court is Affirmed. Judges MARTIN (Robert M.) and WERB concur. Footnotes [1] Plaintiff asserts that by majority vote of the membership of the Property Owners Association, it amended the restrictive covenants to reflect the change in dues from $18.00 to $35.00. To incorporate the purported amendments, the deeds would have had to have been re-executed, reacknowledged and redelivered. Hege v. Sellers, supra. [2] The assessment provision applicable to Beech Mountain Condominium sites provided: [I]t is agreed that each unit owner will join the “Beech Mountain Property Owners’ Association” and shall maintain such membership so long as he owns the property, and shall pay reasonable annual assessment charges for road maintenance, recreational fees, and other charges assessed by the Association. . . . The assessment provision applicable to Chalet sites stated: [T]he owner of any lot subject to these restrictions shall join the Beech Mountain Property Owners’ Association, and shall pay all dues, fees, charges and assessments made by that organization, but not limited to charges for road maintenance, fire protection, and security services. The failure to pay these charges shall result in a lien upon the lot subject to foreclosure.