IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-119

No. 228A21

Filed 16 December 2022

C INVESTMENTS 2, LLC

v.

ARLENE P. AUGER, HERBERT W. AUGER, ERIC E. CRAIG, GINA CRAIG, 

LAURA DUPUY, STEPHEN EZZO, JANICE HUFF EZZO, ANNE CARR GILMAN 

WOOD, as Trustee of the FRANCIS DAVIDSON GILMAN, III TRUST fbo PETS

UW dated June 20, 2007, LAUREN HEANEY, GINNER HUDSON, JACK 

HUDSON, ARTHUR MAKI, RUTH MAKI, JENNIE RAUBACHER, MATTHEW 

RAUBACHER, as Co-Trustees of the RAUBACHER/CHEUNG FAMILY TRUST

dated November 11, 2018, JEFFREY STEGALL, VALERIE STEGALL, and C 

INVESTMENTS 4, LLC

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of 

the Court of Appeals, 277 N.C. App. 420, 2021-NCCOA-209, affirming an order of 

summary judgment entered on 8 April 2019 by Judge Charles M. Viser in Superior 

Court, Mecklenburg County. The Court allowed defendants’ petition for discretionary 

review as to additional issues. Heard in the Supreme Court on 19 September 2022.

Parker Poe Adams & Bernstein, LLP, by Michael G. Adams, Morgan H. Rogers, 

and W. Coker Holmes, for plaintiff-appellee, C Investments 2, LLC, and 

substituted party C Investments 4, LLC. 

Davies Law Firm, PLLC, by Kenneth T. Davies; Robinson, Bradshaw & 

Hinson, P.A., by Richard A. Vinroot; and Nexsen Pruet, PLLC, by James C. 

Smith, for defendant-appellants, Arlene P. Auger, Herbert W. Auger, Eric E. 

Craig, Gina D. Craig, Stephen Ezzo, and Janice Huff Ezzo.

Caudle & Spears, P.A., by Christopher P. Raab and L. Cameron Caudle, Jr., 

for defendant-appellees Jennie Raubacher and Matthew Raubacher, as CoTrustees of the Raubacher/Cheung Family Trust dated November 11, 2008.
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Opinion of the Court

Roberts & Stevens, P.A., by Kenneth R. Hunt and Wyatt S. Stevens, for Jon R. 

Bellows, Galliard S. Bellows, Thomas A. Schieber, Elizabeth G. Schieber, 

William L. Everist, Mary K. Everist, Daniel P. Comer, Meredith M. Comer, 

James S. O'Brien, Gisselle L. O'Brien, Sara Edmonds Green, Rebecca D. 

Tucker, Tony L. Wilkey, Diana M. Wilkey, Kenneth R. Hunt, and Shannon U. 

Hunt; and J. Boone Tarlton and Ervin L. Ball, Jr. for Wayne S. Stanko, and 

Janice Stanko, amici curiae. 

Jordan Price Wall Gray Jones & Carlton, PLLC, by H. Weldon Jones, III, for 

Community Associations Institute, amicus curiae. 

Offit Kurman, P.A., by Zipporah Basile Edwards and Robert B. McNeill, for 

North Carolina Land Title Association, amicus curiae. 

Roberson Haworth & Reese, PLLC, by Alan B. Powell and Andrew D. Irby, for 

Lori H. Postal, amicus curiae. 

Alexander Ricks, PLLC, by Amy P. Hunt, for Michael and Karyn Reardon, 

amici curiae. 

Edmund T. Urban for Urban Title Company, Inc. and pro se, amici curiae. 

Davies Law Firm, PLLC, by Kenneth T. Davies, for C. E. Williams, III, 

Margaret W. Williams, R. Michael James, Katherine H. James, Strawn 

Cathcart, Susan S. Cathcart, Mark B. Mahoney, and Noelle S. Mahoney; 

Robinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot, pro se, and for

Judith A. Vinroot; and Nexsen Pruet, PLLC, by James C. Smith, for Thomas 

M. Belk, Sarah F. Belk, D. Steve Boland, Katrice C. Boland, Shippen Browne, 

Bridget Browne, Joseph D. Downey, Kristen L. Downey, Jubel A. Early, 

Katherine C. Early, John K. Hudson, Carolyn B. Hudson, John Ames Kneisel, 

Anna Blair Kneisel, Alexander W. McAlister, Susan N. McAlister, Ian McDade, 

Victoria L. McDade, Mark William Mealy, Rose Patrick Mealy, Walter O. 

Nisbet, Danielle F. Nisbet, Scott John Rogers Smith, Mary Mallard Smith, G. 

Kennedy Thompson, Kathylee B. Thompson, George C. Ullrich, Margaret C. 

Ullrich, John R. Wickham, Charlotte H. Wickham, William S. Wilson, Ellen G. 

Wilson, Landon R. Wyatt, and Edith H. Wyatt, amici curiae. 

MORGAN, Justice.
C INVS. 2, LLC V. AUGER

2022-NCSC-119

Opinion of the Court

¶ 1 In this case we are called upon to determine the proper interpretation of North 

Carolina’s Real Property Marketable Title Act, N.C.G.S. §§ 47B-1 to 47B-9 (2021) and 

its thirteenth enumerated exception. See N.C.G.S. § 47B-3(13). Defendants appeal 

from a divided Court of Appeals decision, which affirmed the trial court’s grant of 

summary judgment to plaintiff and held that eight of the nine restrictive covenants 

governing plaintiff’s lots within the parties’ residential subdivision were extinguished 

by operation of the Act. Our review in this matter concerns whether the Court of 

Appeals correctly determined that the Act’s thirteenth exception did not apply to save 

all of the nine restrictive covenants. By applying this Court’s well-established

principles of statutory construction and affording the Legislature’s words their plain

and unambiguous meaning, we conclude that the eight covenants at issue do not fall 

within the scope of the Act’s exceptions and are therefore extinguished by operation 

of law. Accordingly, we affirm the opinion of the Court of Appeals.

I. Factual and Procedural Background

¶ 2 Country Colony is a residential subdivision located in Mecklenburg County, 

North Carolina, which was developed by husband and wife Henry G. and Miriam C. 

Newson in the 1950s. On 25 February 1952, prior to selling any parcels within 

Country Colony, the Newsons recorded nine restrictive covenants at the Mecklenburg 

County Register of Deeds which were intended to govern the subsequent development

of the subdivision. These covenants were recorded in Book 1537 at page 517 and 
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specified that they were to run with the land and remain binding on any and all 

subsequent parties and persons. The Newsons further provided that any lot owner 

within Country Colony could enforce the restrictions through proceedings at law or 

in equity against any other property owner in violation thereof. The covenants require

that: 

1. All lots in the tract shall be known and described and 

used for residential lots only.

2. No structure shall be erected, altered, placed or 

permitted to remain on any residential building plot other 

than one detached single-family dwelling not to exceed two 

and one-half stories in height and a private garage, and 

other outbuildings incidental to residential use of the plot.

3. No building shall be erected on any residential building 

plot nearer than 100 feet to the front lot line nor nearer 

than 20 feet to any side line.

4. No noxious or offensive trade or activity shall be carried 

on upon any lot nor shall anything be done thereon which 

may be or become an annoyance or nuisance to the 

neighborhood.

5. No trailer, basement, tent, shack, garage, barn or other

outbuilding erected in the tract shall at any time be used 

as a residence temporarily or permanently, nor shall any 

structure of a temporary character be used as a residence.

6. No dwelling costing less than $10,000.00 shall be

permitted on any lot in the tract. The ground floor area of 

the main structure, exclusive of one story open porches and 

open car ports, shall be not less than 1200 square feet in 

case of a one story structure. In the case of a one and onehalf, two or two and one-half story structure, the ground 

floor area of the main structure, exclusive of one-story open 

porches or open car ports, shall not be less than nine 
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hundred square feet. (It being the intention to require in 

each instance the erection of such a dwelling as would have 

cost not less than the minimum cost provided if same had 

been erected in January, 1952.)

7. A right of way is and shall be reserved along the rear of

each lot and along the side line of each lot where necessary, 

for pole lines, pipes and conduits for use in connection with 

the supplying public utilities service [sic] to the several lots 

in said development.

8. In the event of the unintentional violation of any of the

building line restrictions herein set forth, the parties

hereto reserve the right, by and with the mutual written 

consent of the owner or owners, for the time being of such 

lot, to change the building line restrictions set forth in this 

instrument; provided, however, that such change shall not 

exceed ten percent of the original requirements of such 

building line restrictions.

9. None of the lots shown on said plat shall be subdivided 

to contain less than two acres and only one residence shall 

be erected on each of said lots. 

¶ 3 Plaintiff is a North Carolina limited liability company that owns seven parcels 

within Country Colony, which it purchased between February 2016 and May 2017. 

Each parcel has a root title more than thirty years old that either entirely fails to 

mention, or does not specifically raise by reference to book and page or record, the 

aforementioned restrictive covenants. Neither is such information provided by any of 

the deeds subsequently contained within plaintiff’s chains of title. 

¶ 4 On 28 June 2018, plaintiff filed a complaint in Superior Court, Mecklenburg 

County, requesting declaratory relief regarding the validity and enforceability of the

above covenants. Plaintiff argued, inter alia, that many of the covenants as applied 
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to plaintiff’s lots are invalid under the North Carolina Real Property Marketable Title 

Act, N.C.G.S. §§ 47B-1 to 47B-9 (2021), which provides that any conflicting claims 

placed upon one’s title to real property in North Carolina shall be extinguished if not 

recorded within the chain of record title going back thirty years, subject to certain 

exceptions. Two named defendants, Lawrence and Laura Tillman, who sought to sell 

their own property within Country Colony for development, filed an answer,

counterclaim against plaintiff, and crossclaims against all other defendants seeking 

identical relief on 13 July 2018. Defendants Jennie and Matthew Raubacher filed an 

answer to plaintiff’s complaint and demand for jury trial on 2 August 2018, as well 

as an answer to the Tillmans’ crossclaim on 28 September 2018. Defendant Lauren 

Heaney submitted her own answers to the complaint and crossclaim on 3 August 2018

and 16 August 2018, respectively, and defendants Herbert Auger, Arlene Auger, Eric 

Craig, Gina Craig, Janice Huff Ezzo, Stephen Ezzo, Laura Dupuy, Ashfaq Uraizee, 

and Jabeen Uraizee (Auger defendants) filed an answer to the Tillmans’ crossclaim 

and a motion to dismiss on 31 August 2018. 

¶ 5 On 6 September 2018, plaintiff filed a motion for leave to amend its complaint, 

followed by an amended complaint filed on 26 October 2018, in order to join additional 

parties, properly identify the owners of a lot, and further clarify its argument relating 

to the Marketable Title Act. The Tillmans likewise amended their answer, 

counterclaim, and crossclaim on 1 November 2018. Following this, the Raubachers 
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and the Auger defendants filed updated answers to plaintiff’s amended complaint as 

well as the Tillmans’ amended crossclaim between 19 November 2018 and 14 

December 2018. Newly added defendant Anne Carr Gilman Wood, in her capacity as 

Trustee of the Francis Davidson Gilman, III Trust, filed an answer and affirmative 

defenses to plaintiff’s amended complaint on 7 December 2018; likewise, Jeffrey and 

Valerie Stegall filed an answer and affirmative defenses to both plaintiff’s amended 

complaint and the Tillmans’ amended crossclaim on 4 January 2019. The remaining 

defendants defaulted by failing to timely respond to either plaintiff’s complaint or the 

Tillmans’ crossclaim. 

¶ 6 On 20 December 2018, the Auger defendants filed a motion for summary 

judgment. Plaintiff and the Tillmans filed opposing motions for summary judgment 

on 21 December 2018, requesting that the trial court find that they held marketable 

title free and clear of all of the Newson covenants under the operative provisions of 

the Marketable Title Act. In support of their motions, plaintiff and the Tillmans each 

filed certified copies of their deeds establishing chains of title going back more than 

thirty years without reference to the Newson covenants. The Auger defendants 

submitted a memorandum in opposition to plaintiff’s and the Tillmans’ motions on 31 

January 2019, arguing that the Newson covenants were validly created and not 

terminated by operation of the Marketable Title Act. 

¶ 7 On 8 April 2019, the trial court entered an order granting plaintiff’s and 
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Tillman defendants’ motions for summary judgment, finding that the Act operated to 

extinguish all but the first of the Newsons’ restrictive covenants as applied to 

plaintiff’s and the Tillmans’ property. N.C.G.S. § 47B-2(c). The trial court found that 

none of the Act’s thirteen enumerated exceptions applied to preserve these covenants, 

except for the first covenant, which restricted the subject property to use for 

residential lots only. Defendants appealed to the Court of Appeals, arguing that the 

trial court had erred by concluding that N.C.G.S. § 47B-3(13), which provides an 

exception for “[c]ovenants applicable to a general or uniform scheme of development 

which restrict the property to residential use only,” did not additionally shield

covenants two through nine from the extinguishment provisions of the Act.

¶ 8 The Court of Appeals affirmed the trial court’s grant of summary judgment in 

favor of plaintiff and the Tillmans. C Invs. 2, LLC v. Auger, 277 N.C. App. 420, 2021-

NCCOA-209. In its opinion, the Court of Appeals majority held that eight of the nine 

covenants at issue—which largely govern the type, location, and appearance of 

structures that can be erected on property within Country Colony—did not fit within 

the plain language of N.C.G.S. § 47B-3(13) which, according to the lower court’s

interpretation, exempts only covenants “concerning residential use, or more 

narrowly, multi-family or single-family residential use.” C Invs. 2, ¶ 5. The Court of 

Appeals dissent agreed with the majority that most of the Country Colony covenants 

did not survive operation of the Act, but disagreed that the plain language of N.C.G.S. 
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§ 47B-3(13) was unambiguous. Distinguishing our precedent construing residential 

use covenants otherwise, the dissenting judge concluded that N.C.G.S. § 47B-3(13) 

covers not only covenants restricting property to residential use, but also applies to 

the construction of particular residential structures. Id., ¶ 44 (Dillon, J., concurring 

in part, dissenting in part). Consequently, the dissent concluded that not only the 

first, but also the second and ninth covenants, ought to be shielded from 

extinguishment under the provisions of the Act. Id.

¶ 9 Defendants timely appealed to this Court pursuant to N.C.G.S. § 7A-30 on the 

basis of the Court of Appeals dissent.1 We further allowed defendants’ petition for 

discretionary review to consider whether N.C.G.S. § 47B-3(13) excepts covenants 

three through eight as well from extinguishment by operation of the Act. 

II. Analysis

¶ 10 The question before this Court is which, if any, of Country Colony’s restrictive 

covenants fall within the purview of N.C.G.S. § 47B-3(13) and are thus shielded from 

the extinguishment provisions of the Real Property Marketable Title Act. After 

careful consideration of the Act’s plain words and legislative history, as well as our 

own precedent interpreting substantially identical language, we conclude that only 

the first of the nine covenants at issue survives operation of the Act. We therefore

 

1 The appealing defendants were Arlene and Herbert Auger, Eric and Gina Craig, 

Stephen and Janice Ezzo, and Ashfaq and Jabeen Uraizee. The Uraizees later withdrew from 

the proceedings after they sold their property. 
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affirm the decision of the Court of Appeals.

¶ 11 We begin with an identification of the proper standard of review. Defendants 

are appealing an order of summary judgment granted by the trial court and affirmed 

by the Court of Appeals. “Our standard of review of an appeal from summary 

judgment is de novo; such judgment is appropriate only when the record shows that 

there is no genuine issue as to any material fact and that any party is entitled to a 

judgment as a matter of law.” In re Will of Jones, 362 N.C. 569, 573 (2008) (extraneity 

omitted). In reviewing an order for summary judgment, we view presented evidence 

in the “light most favorable to the nonmoving party.” Dalton v. Camp, 353 N.C. 647, 

651 (2001). Finally, we review matters of statutory interpretation de novo. In re Ernst 

& Young, LLP, 363 N.C. 612, 616 (2009). 

¶ 12 This case presents a question of statutory interpretation of first impression 

before this Court, which warrants a review of our pertinent tenets of construction. 

“According to well-established North Carolina law, the intent of the Legislature 

controls the interpretation of a statute.” State v. Fletcher, 370 N.C. 313, 327–28 (2017) 

(extraneity omitted). “[W]here the language of a statute is clear and unambiguous, 

there is no room for judicial construction and the courts must give [the statute] its 

plain and definite meaning, and are without power to interpolate, or superimpose, 

provisions and limitations not contained therein.” Union Carbide Corp. v. Offerman, 

351 N.C. 310, 315 (2000) (second alteration in original) (quoting State v. Camp, 286 
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N.C. 148, 152 (1974)). “But where a statute is ambiguous, judicial construction must 

be used to ascertain the legislative will.” Burgess v. Your House of Raleigh, Inc., 326 

N.C. 205, 209 (1990). Legislative will “must be found from the language of the act, its 

legislative history and the circumstances surrounding its adoption which throw light 

upon the evil sought to be remedied.” State ex. rel. N.C. Milk Commission v. Nat’l 

Food Stores, Inc., 270 N.C. 323, 332 (1967). 

¶ 13 The statute before us in the present case is North Carolina’s Real Property 

Marketable Title Act. The Act declares that, as a matter of public policy, land is a 

“basic resource of the people of the State of North Carolina” that “should be made 

freely alienable and marketable so far as is practicable.” N.C.G.S. § 47B-1(1). 

Accordingly, the Act states that, “if a person claims title to real property under a 

chain of record title for 30 years, and no other person has filed a notice of any claim 

of interest in the real property during the 30-year period, then all conflicting claims 

based upon any title transaction prior to the 30-year period shall be extinguished,” 

subject to certain limited exceptions. Id. § 47B-1. 

¶ 14 It is undisputed that plaintiff traces its interest in seven lots within Country 

Colony to root titles going back at least thirty years without reference to the Newson 

covenants.2 The resolution of the instant case hinges upon the proper interpretation 

 

2 The Tillmans sold their property to C Investments 4 in December 2021. C 

Investments 4 has been substituted as a party in place of the Tillmans, Uraizees, Julkas, and 
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of one of the Act’s exceptions. Subsection 47B-3 establishes that: 

Such marketable record title shall not affect or 

extinguish the following rights:

. . . .

(13) Covenants applicable to a general or uniform scheme 

of development which restrict the property to residential 

use only, provided said covenants are otherwise 

enforceable. The excepted covenant may restrict the 

property to multi-family or single-family residential use or 

simply to residential use. Restrictive covenants other than 

those mentioned herein which limit the property to 

residential use only are not excepted from the provisions of 

Chapter 47B.

Id. § 47B-3(13).

¶ 15 Country Colony is indisputably governed by a series of protective covenants 

that provide for a general or uniform scheme of development as envisioned by its 

developers, the Newsons. Defendants urge us to interpret N.C.G.S. § 47B-3(13) as 

meaning that, if a collection of covenants governing a general or uniform scheme of 

development includes a restriction mandating residential use among them, the Act 

exempts from extinguishment all covenants that apply to that general or uniform 

scheme of development. Thus, in accordance with defendants’ statutory 

interpretation, all nine of Country Colony’s covenants should be preserved because

they together constitute a general or uniform scheme of development that restricts 

 

Bridget Holdings, LLC. There is now a single plaintiff in this case, which is C Investments 2,

LLC, and substituted party C Investments 4, LLC.
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property within the subdivision to residential use. On the other hand, plaintiff 

construes this exception as applying to protect only those covenants that actually 

restrict property to residential use; under this view, only the subdivision’s first 

covenant is exempted. The dissenting judge at the Court of Appeals interprets the 

Act as preserving those covenants which either restrict the property to residential use 

or permit only the construction of residential buildings of certain types upon the 

property and would exempt covenants one, two, and nine while extinguishing the 

remainder. 

¶ 16 Based upon the plain language of the statute and the ordinary meaning of the 

words and phrases contained therein, as well as our own precedent in interpreting 

substantially identical language, we agree with plaintiff that N.C.G.S. § 47B-3(13) 

applies to preserve only the first of Country Colony’s restrictive covenants. 

A. Plain Meaning and Ordinary Tools of Construction 

¶ 17 In our view, the plain words of N.C.G.S. § 47B-3(13) are unambiguous. Each 

sentence of this exception, read in harmony, combines with the others to carve out a

limited exception for residential use restrictions occurring within the context of 

general or uniform schemes of development. The first sentence of the exception reads: 

“[M]arketable record title shall not affect or extinguish . . . [c]ovenants applicable to 

a general or uniform scheme of development which restrict the property to residential 

use only, provided said covenants are otherwise enforceable.” Id. § 47B-3.
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¶ 18 “Ordinary rules of grammar apply when ascertaining the meaning of a statute, 

and the meaning must be construed according to the context and approved usage of 

the language.” Dunn v. Pac. Emps. Ins. Co., 332 N.C. 129, 134 (1992). We presume 

that the Legislature chose its words with due care and comprehension of their 

ordinary meaning. See Sellers v. Friedrich Refrigerators, Inc., 283 N.C. 79, 85 (1973) 

(“In construing a statute, it will be presumed that the legislature comprehended the 

import of the words employed by it to express its intent.”) (extraneity omitted).

¶ 19 By its plain language, the first sentence of N.C.G.S. § 47B-3(13) refers to 

covenants that “restrict” property to “residential use,” provided that these covenants

are (1) “applicable to a general or uniform scheme of development” and (2) “otherwise 

enforceable.” N.C.G.S. § 47B-3(13). This construction of the statute is the most 

grammatically sound; it recognizes that “restrict” in its chosen form refers to the 

plural referent “covenants” as opposed to the singular referent “scheme of 

development,” thus providing that the exception’s scope is limited to those covenants 

that restrict property to residential use, as opposed to all covenants occurring within 

a scheme of development which restricts property to residential use. Moreover, the 

sentence’s additional qualifications—that excepted covenants apply to “general or 

uniform schemes of development” and that they be “otherwise enforceable”—are not 

mere surplusage but provide important clarification for the exception as a whole. 
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¶ 20 The first qualification clarifies that the Marketable Title Act does not operate 

to disturb the common-law principle that only those covenants applicable to a general 

or uniform scheme of development, as opposed to personal covenants, may run with 

the land. See Sedberry v. Parsons, 232 N.C. 707 (1950); Phillips v. Wearn, 226 N.C. 

290 (1946). This would not be the first time that the Legislature has chosen to codify 

the common-law into its general statutes. See Cook v. Bankers Life & Cas. Co., 329 

N.C. 488, 494 (1991) (Meyer, J., concurring in result) (“[A]s every lawyer knows, the 

legislature frequently enacts a statute which simply codifies existing common law, 

without any change whatsoever to the common law it codifies.”); see, e.g., Ray v. N.C. 

DOT, 366 N.C. 1, 6–7 (2012) (noting that the Legislature had codified the public duty 

doctrine and its exceptions as laid out by this Court in case law); Giles v. First Va. 

Credit Servs., 149 N.C. App. 89, 105 (2002) (observing that the Legislature had 

“codified a right existing at common law.”), appeal dismissed and disc. rev. denied, 

355 N.C. 491 (2002).

¶ 21 The second qualification, requiring that the covenants be “otherwise 

enforceable,” allows parties to continue to advance other arguments against the 

enforcement of restrictive covenants encumbering their property, such as plaintiff’s 

own argument, alleged in its initial complaint, that “consistent, continuous 

violations” of the Newson restrictions by other landowners within the subdivision 

“and the passage of time have changed the condition of Country Colony and have 
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rendered the [Newson covenants] unenforceable.” Despite defendants’ contention 

that this “proviso was obviously intended to exclude ‘racial’ or other obnoxious 

restrictions from enforcement,” courts have found, and under this provision may 

continue to find, residential use restrictions unenforceable for reasons unrelated to

their particular substance. See, e.g., Logan v. Sprinkle, 256 N.C. 41, 47 (1961) 

(residential use restriction unenforceable under theory of abandonment when

developers conveyed six of the eight lots in the development for the construction and 

operation of commercial enterprise); Tull v. Drs. Bldg., Inc., 255 N.C. 23, 41 (1961) 

(considering whether laches, waiver, acquiescence, or estoppel prevents enforcement 

of residential use restrictions). Under the plain language of N.C.G.S. § 47B-3(13), 

courts may continue to refuse to enforce outdated restrictive covenants through the 

application of common-law doctrines entirely separate from the Act’s statutory 

provisions.

¶ 22 The next sentence of N.C.G.S. § 47B-3(13) further belies defendants’

interpretation. It reads: “The excepted covenant may restrict the property to multifamily or single-family residential use or simply to residential use.” N.C.G.S. § 47B3(13).

¶ 23 “Because the actual words of the legislature are the clearest manifestation of 

its intent, we give every word of the statute effect, presuming that the legislature 

carefully chose each word used.” N.C. Dep’t of Corr. v. N.C. Med. Bd., 363 N.C. 189, 
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201 (2009). “Thus, in effectuating legislative intent, it is our duty to give effect to the 

words actually used in a statute and not to delete words used or to insert words not 

used.” Lunsford v. Mills, 367 N.C. 618, 623 (2014). “Since a legislative body is 

presumed not to have used superfluous words, our courts must accord meaning, if 

possible, to every word in a statute.” N.C. Bd. of Exam’rs for Speech & Language 

Pathologists & Audiologists v. N.C. State Bd. of Educ., 122 N.C. App. 15, 21 (1996), 

aff’d per curiam in part and disc. rev. improvidently allowed in part, 345 N.C. 493 

(1997) (per curiam).

¶ 24 As opposed to “numerical flip-flopping” serving no apparent purpose, this

sentence’s reference to a singular “excepted covenant” contemplates that individual 

covenants, rather than entire sets applicable to general or uniform schemes of 

development, be the subject of preservation under the exception. Defendants and 

amici here attempt to persuade us that this sentence of the statute serves to specify 

the appropriate residential use restrictions which may serve to allow entire sets of 

covenants applicable to a general or uniform scheme of development to be subject to 

the exception. But this sentence, grammatically and logically, reads that individual 

covenants are subject to exception (“[t]he excepted covenant”) if and only if they fall 

within a narrow category of residential use restrictions. 

¶ 25 Moreover, this narrow scope—allowing excepted covenants to “restrict the 

property to multi-family or single-family residential use or simply to residential use,”
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N.C.G.S. § 47B-3(13)—conveys the General Assembly’s intent that the exception go 

no further than to exempt those specific types of covenants. See Campbell v. First 

Baptist Church, 298 N.C. 476, 482 (1979) (“Under the doctrine of expressio unius est 

exclusio alterius, the mention of specific exceptions implies the exclusion of others.”).

Because the apparent purpose of this sentence is to provide the appropriate 

description of a residential use restriction to be excepted under N.C.G.S. § 47B-3(13), 

the sentence would be ineffectual if we read it to cover all covenants pertaining to a 

general or uniform scheme of development containing any form of residential use 

restriction regardless of each covenant’s individual scope. We should not, and 

therefore do not, favor such a statutory interpretation under our well-established 

tenets of construction.

¶ 26 It is at this point that we also discount the Court of Appeals dissenting judge’s

interpretation of N.C.G.S. § 47B-3(13). See C Invs. 2, ¶ 44 (Dillon, J., concurring in 

part, dissenting in part). This Court’s precedent establishes that restrictions against 

certain usages of property and restrictions against the development of structures of 

a particular nature upon property are not one and the same. J.T. Hobby & Son, Inc. 

v. Fam. Homes of Wake Cnty., Inc., 302 N.C. 64, 74–75 (1981) (holding that “a 

provision in a restrictive covenant as to the character of the structure which may be 

located upon a lot does not by itself constitute a restriction of the premises to a 

particular use”); Huntington v. Dennis, 195 N.C. 759, 760–61 (1928) (per curiam) 
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(holding that the construction of an apartment building does not violate a residential 

use restriction because the building would be used for residential purposes only). “The 

Legislature is presumed to know the existing law and to legislate with reference to 

it.” State v. S. Ry. Co., 145 N.C. 495, 542 (1907). Because our decision in Huntington 

predates the passage of the Marketable Title Act in 1973, we presume that the 

Legislature was aware of these legal distinctions and thus of the significance of 

choosing to except residential use restrictions and not those permitting the 

construction of buildings of only a certain residential type. 

¶ 27 Furthermore, our analysis of the restrictions at issue in J.T. Hobby and 

Huntington is derived from consideration of the same public policy principles 

motivating the passage of the Marketable Title Act—that land should be freed from 

unnecessary limitations against its use or alienation to the fullest extent feasible. 

J.T. Hobby & Son, 302 N.C. 64 at 70–71 (“[Restrictive] covenants are not favor[ed] by 

the law and they will be strictly construed to the end that all ambiguities will be 

resolved in favor of the unrestrained use of land. [This rule] 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.”) (citations

omitted). Although we readily concede that a statute’s reference to restrictive 

covenants is not the same as a restrictive covenant itself, and is therefore not subject 

to the same mandate of strict construction, nonetheless we see no reason to diverge
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from our established interpretation of substantially identical language to exempt 

covenants two and nine from the extinguishment provisions of the Marketable Title 

Act given (1) our aforementioned presumption that the Legislature acts with 

reference to established law, including our decision in Huntington, and (2) the Act’s

own mandate of liberal construction in favor of the simplification and facilitation of 

the transfer of real property.

¶ 28 The final sentence of Subsection 47B-3(13) reads: “Restrictive covenants other 

than those mentioned herein which limit the property to residential use only are not 

excepted from the provisions of Chapter 47B.” N.C.G.S. § 47B-3(13). This sentence 

presents, in our view, the most ambiguity among the provisions, but neither 

interpretation shades in defendants’ favor. The two potential interpretations are as 

follows: (1) Restrictive covenants, other than those mentioned herein, which limit the 

property to residential use only are not excepted from the provisions of Chapter 47B, 

or (2) Restrictive covenants other than those mentioned herein, which limit the 

property to residential use only, are not excepted from the provisions of Chapter 47B.

The former choice serves to reiterate that only those residential use restrictions which 

occur within the context of a general or uniform scheme of development and are 

otherwise enforceable are preserved under the Marketable Title Act. The latter 

alternative serves to reinforce plaintiff’s position—that the scope of N.C.G.S. § 47B3(13) is sharply circumscribed to covenants that actually limited property to 
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residential use only and cannot be used to except covenants that do not relate to 

residential use. 

¶ 29 Neither interpretation is dispositive and we do not wholly favor one reading 

over the other. On one hand, the lack of commas in this portion of the statute could 

imply that neither clause is intended to be non-restrictive, specifically, that both are 

intended to substantively limit or define the scope of “restrictive covenants.” This 

analysis would favor the first interpretation because both phrases “other than those 

mentioned herein” as well as “which limit the property to residential use only” would 

serve to limit the meaning of “restrictive covenants” to those that concern residential 

use but are not otherwise covered by the exception. Under the second interpretation, 

however, the phrase “which limit the property to residential use only” would be nonrestrictive because it would not meaningfully limit or define the scope of “restrictive 

covenants other than those mentioned herein” since only residential use covenants 

were mentioned therein. Either interpretation is, on some level, duplicative. 

However, instead of interpreting this final sentence of N.C.G.S. § 47B-3(13) as merely 

repeating the qualifications provided by the first sentence, we consider the distinct 

prospect that the Legislature had envisioned disputes exactly like the one at issue

here and was attempting to foreclose them by reiterating its intention that only those 

covenants which actually restrict property to residential use and are otherwise 
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covered by the language of N.C.G.S. § 47B-3(13) would be excluded from the 

extinguishment provisions of the Act. 

¶ 30 The dissent attempts to cast aspersions upon our interpretation of the clarity 

of the plain language of N.C.G.S. § 47B-3(13) and the customary interpretation of 

accompanying words, phrases, and punctuation in the statute by depicting our 

reference to the standard principles of statutory construction as some sort of 

concession to the correctness of the dissent’s view that the language of the statute is 

ambiguous. In actuality, the converse is true: we emphasize the well-established 

guidelines of statutory construction, not because the law at issue is ambiguous, but 

in order to illustrate the established pathway by which we readily construe the 

statutory provision at issue and reach an outcome consistent with this Court’s prior 

guidance which governs the proper interpretation of statutory law.

B. Legislative Intent and Public Policy Principles

¶ 31 “Where the language of a statute is clear and unambiguous, there is no room 

for judicial construction and the courts must construe the statute using its plain 

meaning.” Burgess, 326 N.C. at 209 (extraneity omitted). As it is our position that the 

language of N.C.G.S. § 47B-3(13) is clear and unambiguous, we need not go further

in our analysis. However, we believe that it is worth observing that our interpretation 

of N.C.G.S. § 47B-3(13) comports with the public policy principles which motivated

the passage of the Real Property Marketable Title Act, does not undermine the 
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purposes of the Act, and does not invite the ill consequences described by defendants 

and amici. 

¶ 32 “In ascertaining [legislative] intent, a court may consider the purpose of the 

statute and the evils it was designed to remedy, the effect of the proposed 

interpretations of the statute, and the traditionally accepted rules of statutory 

construction.” Fletcher, 370 N.C. at 327–28 (extraneity omitted). “The Court may also 

consider the policy objectives prompting passage of the statute and should avoid a 

construction which defeats or impairs the purpose of the statute.” O & M Indus. v. 

Smith Eng’g Co., 360 N.C. 263, 268 (2006) (extraneity omitted).

¶ 33 The intent of the legislative body which enacted the Real Property Marketable 

Title Act is expressly stated in the first passage of the statute:

§ 47B-1. Declaration of policy and statement of 

purpose.

It is hereby declared as a matter of public policy by 

the General Assembly of the State of North Carolina that:

(1) Land is a basic resource of the people of the State of 

North Carolina and should be made freely alienable 

and marketable so far as is practicable.

(2) Nonpossessory interests in real property, obsolete 

restrictions and technical defects in titles which have 

been placed on the real property records at remote 

times in the past often constitute unreasonable 

restraints on the alienation and marketability of real 

property.
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(3) Such interests and defects are prolific producers of 

litigation to clear and quiet titles which cause delays in 

real property transactions and fetter the marketability 

of real property.

(4) Real property transfers should be possible with 

economy and expediency. The status and security of 

recorded real property titles should be determinable 

from an examination of recent records only. 

It is the purpose of the General Assembly of the 

State of North Carolina to provide that if a person claims 

title to real property under a chain of record title for 30 

years, and no other person has filed a notice of any claim of 

interest in the real property during the 30-year period, 

then all conflicting claims based upon any title transaction 

prior to the 30-year period shall be extinguished. (1973, c. 

255, s. 1.)

N.C.G.S. § 47B-1. 

¶ 34 In addition, the Legislature mandated a liberal construction in order to 

effectuate its purpose of simplifying and facilitating real property title transactions:

§ 47B-9. Chapter to be liberally construed.

This Chapter shall be liberally construed to effect 

the legislative purpose of simplifying and facilitating real 

property title transactions by allowing persons to rely on a 

record chain of title of 30 years as described in G.S. 47B-2, 

subject only to such limitations as appear in G.S. 47B-3. 

(1973, c. 255, s. 1.)

Id. § 47B-9. 

¶ 35 In this Court’s view, extinguishing outdated covenants such as the Newsons’

falls squarely within the express purpose of the Marketable Title Act to summarily 
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extinguish “[n]onpossessory interests, . . . obsolete restrictions and technical defects 

in titles which have been placed on the real property records at remote times in the 

past” (emphases added) and which tend to be “prolific producers of litigation . . .

caus[ing] delays in real property transactions and fetter[ing] the marketability of real 

property.” Id. § 47B-1(3). The present case is illustrative of such a circumstance, 

wherein plaintiff’s original complaint contained multiple theories upon which the 

trial court could have determined Country Colony’s restrictive covenants to be 

unenforceable as applied to plaintiff’s seven plots. Some would have required 

extensive factual inquiries into, for instance, the allegedly changed character of the 

subdivision and the disputed violations undertaken by defendants. By contrast, 

application of the Marketable Title Act properly resolved the dispute through 

summary judgment and in favor of more freely alienable and marketable title for both 

plaintiff and the Tillmans. 

¶ 36 Our construction of N.C.G.S. § 47B-3(13) is in tandem with the statute’s other 

provisions. Rather than stripping older neighborhoods of their character without 

recourse, the exception’s limited applicability directs affected property owners to 

preserve their covenants through the procedures expressly afforded later in the Act. 

Residents of neighborhoods governed by sets of restrictive covenants who wish to 

preserve them may follow the procedure established by N.C.G.S. § 47B-4 in order to 

record a notice to be indexed in the relevant chains of title throughout their 
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community and to keep potential buyers on notice of the restrictions for another 

thirty years to come:

§ 47B-4. Preservation by notice; contents; recording; 

indexing.

(a) Any person claiming a right, estate, interest or 

charge which would be extinguished by this Chapter may 

preserve the same by registering within such 30-year 

period a notice in writing, duly acknowledged, in the office 

of the register of deeds for the county in which the real 

property is situated, setting forth the nature of such claim, 

which notice shall have the effect of preserving such claim 

for a period of not longer than 30 years after registering the 

same unless again registered as required herein.

Id. § 47B-4(a). 

¶ 37 This strikes us as the Legislature’s intended balance between unburdening 

real property from cumbersome nonpossessory interests including outdated 

covenants and providing an avenue through which communities that continue to 

abide by and rely upon their neighborhood’s restrictive covenants could preserve 

them. Indeed, by shifting the burden onto communities to take action to preserve nonresidential use covenants that are not contained within chains of title going back 

thirty years by filing notices within the chains of all affected properties, the 

Legislature could both (1) ensure that only those covenants that are actually valued 

will continue to encumber property in the state while obsolete restrictions naturally

abate, and (2) effectuate the statute’s purpose to simplify the title transfer process by 

allowing purchasers of real property to determine the status of recorded real property 
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titles from an examination of recent records only. This is precisely the type of 

deliberate policy choice which is best left to the Legislature. Although the dissent 

claims to heed legislative intent while simultaneously attributing ambiguity to the 

Legislature’s statutory enactment to justify the dissent’s archaic approach, we adhere 

to the plain and unambiguous meaning of N.C.G.S. § 47B-3(13) while determining 

that it harmonized with the overarching purposes and provisions of the Marketable 

Title Act. 

III. Conclusion

¶ 38 We conclude that the Court of Appeals correctly held that all but the first of 

Country Colony’s restrictive covenants as applied to plaintiff’s property are to be 

extinguished under the Real Property Marketable Title Act and that the trial court 

correctly granted plaintiff’s motion for summary judgment. We hold that a plain 

reading of N.C.G.S. § 47B-3(13) exempts from extinguishment only those covenants 

that actually require that a property be used residentially within the confines of a 

general or uniform scheme of development. 

AFFIRMED.
Chief Justice NEWBY dissenting.

¶ 39 This case requires us to determine which types of restrictive covenants are 

excepted from extinguishment under N.C.G.S. § 47B-3(13) of the Real Property 

Marketable Title Act (the Act). Since the relevant statutory language is ambiguous, 

the intent of the legislature as expressed through our established rules of 

construction and the Act’s purpose controls. When considering the reason behind the 

General Assembly’s addition of subsection 13 and the Act’s overall purpose, as well 

as giving every word meaning, it becomes apparent that the General Assembly 

intended to except from extinguishment entire sets of protective covenants under a 

general or uniform scheme of development which include a covenant restricting a 

subdivision to residential use. By eliminating all the protective covenants under a 

general or uniform scheme of development except the one restricting the property to 

residential use, the majority’s decision today will destroy the character of many 

neighborhoods and communities across our state. I respectfully dissent. 

¶ 40 On 28 February 1952, Henry G. Newson filed a plat map for a tract of real 

property that he and his wife owned in Mecklenburg County (Country Colony). 

Country Colony consisted of seventeen lots, with each being at least two acres. Before 

selling any of these lots, Newson filed a document which established the following 

protective covenants for Country Colony:

1. All lots in the tract shall be known and described and 

used for residential lots only.

2. No structure shall be erected, altered, placed or 

permitted to remain on any residential building plot other 
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than one detached single-family dwelling not to exceed two 

and one-half stories in height and a private garage, and 

other outbuildings incidental to residential use of the plot.

3. No building shall be erected on any residential building 

plot nearer than 100 feet to the front lot line nor nearer 

than 20 feet to any side line.

4. No noxious or offensive trade or activity shall be carried 

on upon any lot nor shall anything be done thereon which 

may be or become an annoyance or nuisance to the 

neighborhood.

5. No trailer, basement, tent, shack, garage, barn or other

outbuilding erected in the tract shall at any time be used 

as a residence temporarily or permanently, nor shall any 

structure of a temporary character be used as a residence.

6. No dwelling costing less than $10,000.00 shall be 

permitted on any lot in the tract. The ground floor area of 

the main structure, exclusive of one story open porches and 

open car ports, shall be not less than 1200 square feet in

case of a one story structure. In the case of a one and onehalf, two or two and one-half story structure, the ground 

floor area of the main structure, exclusive of one-story open 

porches or open car ports, shall not be less than nine 

hundred square feet. (It being the intention to require in 

each instance the erection of such a dwelling as would have 

cost not less than the minimum cost provided if same had 

been erected in January, 1952.)

7. A right of way and is and shall be reserved along the rear 

of each lot and along the side line of each lot where 

necessary, for pole lines, pipes and conduits for use in 

connection with the supplying public utilities service [sic]

to the several lots in said development.

8. In the event of the unintentional violation of any of the 

building line restrictions herein set forth, the parties 

hereto reserve the right, by and with the mutual written 

consent of the owner or owners, for the time being of such 
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lot, to change the building line restrictions set forth in this 

instrument; provided, however, that such change shall not 

exceed ten percent of the original requirements of such 

building line restrictions.

9. None of the lots shown on said plat shall be subdivided 

to contain less than two acres and only one residence shall 

be erected on each of said lots. 

¶ 41 The Newsons then sold all seventeen lots in Country Colony and expressly 

subjected each conveyance to the protective covenants. Between 2016 and 2017, 

plaintiff C Investments 2, LLC, acquired seven contiguous parcels in Country Colony, 

derived from four of the original seventeen lots. Other than the original deeds from 

the Newsons, there was no specific reference to the protective covenants in any of the 

chains of title for the lots that plaintiff purchased. On 28 June 2018, plaintiff filed a 

complaint against defendants, the respective owners of the remaining lots in Country 

Colony, seeking a declaratory judgment that protective covenants 2 through 9 are 

void under the Act, which provides, in relevant part, as follows: 

§ 47B-2. Marketable record title to estate in real 

property; 30-year unbroken chain of title of record; 

effect of marketable title.

(a) Any person having the legal capacity to own 

real property in this State, who, alone or together with his 

predecessors in title, shall have been vested with any 

estate in real property of record for 30 years or more, shall 

have a marketable record title to such estate in real 

property.

. . . .

(c) Subject to the matters stated in [N.C.]G.S. 
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[§] 47B-3, such marketable record title shall be free and 

clear of all rights, estates, interests, claims or charges 

whatsoever, the existence of which depends upon any act, 

title transaction, event or omission that occurred prior to 

such 30-year period. All such rights, estates, interests, 

claims or charges, however denominated, whether such 

rights, estates, interests, claims or charges are or appear 

to be held or asserted by a person sui juris or under a 

disability, whether such person is natural or corporate, or 

is private or governmental, are hereby declared to be null 

and void.

. . . .

§ 47B-3. Exceptions.

Such marketable record title shall not affect or 

extinguish the following rights:

. . . .

(13) Covenants applicable to a general or uniform 

scheme of development which restrict the 

property to residential use only, provided said 

covenants are otherwise enforceable. The 

excepted covenant may restrict the property 

to multi-family or single-family residential 

use or simply to residential use. Restrictive 

covenants other than those mentioned herein 

which limit the property to residential use 

only are not excepted from the provisions of 

Chapter 47B.

N.C.G.S. §§ 47B-2(a), -2(c), -3(13) (2021). 

¶ 42 Defendants Lawrence and Linda Tillman filed a crossclaim also challenging 

the validity of the same protective covenants. Defendants Arlene and Herbert Auger, 
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Eric and Gina Craig, and Stephen and Janice Ezzo1 (appellants), however, sought to 

enforce the protective covenants. On 21 December 2018, C Investments 2, LLC, and 

defendants Lawrence and Linda Tillman (appellees) filed separate motions for 

summary judgment. The trial court entered an “Order Granting Plaintiff’s And 

Tillmans’ Motions for Summary Judgment” on 8 April 2019, concluding that N.C.G.S. 

§ 47B-3(13) excepted from extinguishment only protective covenant 1 and that 

protective covenants 2 through 9 were thus null and void. Appellants appealed. 

¶ 43 Before the Court of Appeals, appellants argued that “under N.C.[G.S.] 

§ 47B-3(13), if a collection of covenants governing a uniform scheme of development 

include a restriction on residential use only, the Marketable Title Act exempts all

covenants applying to that uniform scheme of development.” C Invs. 2, LLC v. Auger, 

277 N.C. App. 420, 2021-NCCOA-209, ¶ 16. In affirming the trial court’s decision, the 

Court of Appeals reasoned that in subsection 13’s first sentence, the phrase “which 

restrict,” based on its plural form, must modify the plural word “covenants” rather 

than the singular phrase “scheme of development.” Id. ¶ 17. Therefore, the Court of 

Appeals concluded that the exception in subsection 13 “applies only to ‘covenants . . . 

which restrict the property to residential use only’ and not to other covenants that 

are part of a general or uniform scheme of development and merely accompany a 

covenant restricting the property to residential use only.” Id. 

 

1 The remaining defendants are not parties to this appeal. 
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¶ 44 The Court of Appeals also concluded that such “residential use only” covenants 

do not include related covenants governing the size and number of structures on a 

lot. Id. ¶¶ 18–19. It reasoned that subsection 13’s next two sentences “further define 

the types of covenants that are subject to the statutory exception and expressly state 

that the exception is limited solely to those covenants restricting property to 

residential use, or more narrowly to multi-family or single-family residential use, and 

that it does not apply to other, related covenants.” Id. ¶ 19. According to the Court of 

Appeals, the second sentence of subsection 13 indicates that the exception “applies 

solely to these specific covenants, not to other, related ones that might accompany 

these specific covenants as part of a uniform scheme of development.” Id. ¶ 20. 

Finally, the Court of Appeals determined that subsection 13’s third sentence 

“expressly indicates that the statute should not be read broadly and that it excepts 

only those covenants ‘which limit the property to residential use.’ ” Id. ¶ 21 (quoting 

N.C.G.S. § 47B-3(13)). As such, the Court of Appeals concluded that protective 

covenants 2 through 9 are void and thus affirmed the trial court’s order granting 

summary judgment in favor of appellees. 

¶ 45 The dissenting opinion at the Court of Appeals agreed with the majority that 

subsection 13 excepts protective covenant 1. Id. ¶ 43 (Dillon, J., concurring in part 

and dissenting in part). It disagreed with the majority, however, by concluding that 

subsection 13 “describes both structural covenants and occupancy covenants; that is, 
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occupancy covenants which limit the use of property to occupancy by a single family 

and structural covenants which limit the use of property to the development of a 

single-family type residential structure.” Id. ¶ 44. As such, the dissenting opinion 

would have held that subsection 13 also excepts “the portions of Country Colony’s 

second and ninth covenants, which restrict the use of each lot to a single-family 

residential structure.” Id. Appellants appealed to this Court based upon the 

dissenting opinion at the Court of Appeals. We also allowed appellants’ petition for 

discretionary review to address subsection 13’s applicability to other protective 

covenants within a residential scheme of development. 

¶ 46 At this Court, the majority opinion adopts the reasoning of the Court of 

Appeals majority, holding that subsection 13 only excepts from extinguishment those 

covenants that specifically restrict a property to residential use only. Interestingly, 

the majority states that the language of N.C.G.S. § 47B-3(13) is clear and 

unambiguous. Their analysis, however, negates this conclusion and applies canons of 

statutory construction to interpret the language of the statute. This Court recently 

explained that “[a]ccording to well-established North Carolina law, ‘[w]hen the 

language of a statute is clear and unambiguous, there is no room for judicial 

construction and the courts must give the statute its plain and definite meaning . . . 

.’ ” State v. Carey, 373 N.C. 445, 450, 838 S.E.2d 367, 372 (2020) (quoting State v. 

Jackson, 353 N.C. 495, 501, 546 S.E.2d 570, 574 (2001)). Accordingly, the majority 
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ultimately concedes that the language of the statute is ambiguous by resorting to 

statutory construction to interpret its meaning. 

¶ 47 Indeed, this case raises an issue of statutory interpretation. See Brown v. 

Flowe, 349 N.C. 520, 523, 507 S.E.2d 894, 896 (1998) (“A question of statutory 

interpretation is ultimately a question of law for the courts.”). “The principal goal of 

statutory construction is to accomplish the legislative intent.” Lenox, Inc. v. Tolson, 

353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citing Polaroid Corp. v. Offerman, 349 

N.C. 290, 297, 507 S.E.2d 284, 290 (1998)). “The best indicia of that intent are the 

language of the statute[,] . . . the spirit of the act[,] and what the act seeks to 

accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs of Town of Nags 

Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citation omitted). Furthermore, 

the purpose of statutory construction is to ensure every word or phrase provides 

meaning and that none are surplusage. E.g., State v. Williams, 286 N.C. 422, 431, 

212 S.E.2d 113, 119 (1975). The relevant question, then, is whether, based upon the 

applicable statutory provisions, the General Assembly intended that the only 

covenants to survive extinguishment are those that explicitly restrict a property to 

residential use only.

¶ 48 “The Real Property Marketable Title Act was enacted by the General Assembly 

of North Carolina in an effort to expedite the alienation and marketability of real 

property.” Heath v. Turner, 309 N.C. 483, 488, 308 S.E.2d 244, 247 (1983) (emphasis 
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added). In pursuit of this purpose, and relevant to the present case, the “cleansing 

provision” of N.C.G.S. § 47B-2(c) “declare[s] . . . null and void” protective covenants 

that exist solely due to “any act, title transaction, event or omission that occurred 

prior to such 30-year period.” N.C.G.S. § 47B-2(c). In response to concerns expressed 

by Mecklenburg County residents that many residential neighborhoods outside 

Charlotte’s zoning jurisdiction would be stripped of their protective covenants, 

however, the General Assembly included an exception for such covenants in 

subsection 13. Edward S. Finley, Jr., Note, Property Law – North Carolina’s 

Marketable Title Act – Will the Exceptions Swallow the Rule?, 52 N.C. L. Rev. 211, 

220 n.83 (1973) (hereinafter Note, Marketable Title Act). Specifically, subsection 13 

excepts the following covenants from extinguishment: 

Covenants applicable to a general or uniform scheme of 

development which restrict the property to residential use 

only, provided said covenants are otherwise enforceable. 

The excepted covenant may restrict the property to multifamily or single-family residential use or simply to 

residential use. Restrictive covenants other than those 

mentioned herein which limit the property to residential 

use only are not excepted from the provisions of Chapter 

47B.

N.C.G.S. § 47B-3(13). 

¶ 49 When carefully reviewing subsection 13’s language within the context of the 

exception’s purpose, it becomes apparent that the General Assembly intended to 

except all the covenants that are part of a general or uniform “residential only” 
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scheme of development. The first sentence explains that in order for covenants to be 

excepted, they must meet three elements: (1) the covenants must be “applicable to a 

general or uniform scheme of development”; (2) the covenants must operate to 

“restrict the property to residential use only”; and (3) the covenants must be 

“otherwise enforceable.” Id. 

¶ 50 The third element requires that these covenants must not be void for some 

reason other than extinguishment under N.C.G.S. § 47B-2(c). In other words, none of 

the covenants can be unenforceable because they violate public policy. The majority’s 

interpretation makes this element meaningless.

¶ 51 Regarding the first element, “[t]he primary test of the existence of a general 

plan for the development or improvement of a tract of land divided into a number of 

lots is whether substantially common restrictions apply to all lots of like character or 

similarly situated.” Sedberry v. Parsons, 232 N.C. 707, 711, 62 S.E.2d 88, 91 (1950). 

As such, for a covenant to be excepted by subsection 13, it must first be part of a series 

of “substantially common restrictions” that apply to all “similarly situated” lots 

within a subdivided tract of land. Id.; see N.C.G.S. § 47B-3(13). The majority concedes 

that “Country Colony is indisputably governed by a series of protective covenants that 

provide for a general or uniform scheme of development as envisioned by its 

developers, the Newsons.”

¶ 52 In order to meet the second element, these covenants must establish the 
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subject subdivision as one for “residential use only.” N.C.G.S. § 47B-3(13). This 

element reveals an ambiguity within subsection 13. On the one hand, a hyper-literal 

reading of this element as adopted by the majority could mean that the only covenants 

excepted are those single covenants which specifically state that the subject property 

is limited to residential use only. This reading, however, seemingly contradicts the 

reason for subsection 13’s existence and fails to effectively advance the Act’s general 

purpose of expediting real property transactions. Furthermore, as previously 

discussed, this hyper-literal approach renders the “otherwise enforceable” clause 

meaningless. On the other hand, a more contextual reading of this element could 

mean that an entire set of covenants—i.e., those that comprise a general or uniform 

scheme of development—is excepted so long as it specifically restricts a subdivision 

to residential use only. This reading should be adopted because it more appropriately 

reflects the General Assembly’s intent by addressing the reason behind subsection 

13’s addition while also advancing the Act’s purpose. See State v. Beck, 359 N.C. 611, 

614, 614 S.E.2d 274, 277 (2005) (“When . . . a statute is ambiguous, judicial

construction must be used to ascertain the legislative will. Furthermore, where a 

literal interpretation of the language of a statute will lead to absurd results, or 

contravene the manifest purpose of the Legislature, as otherwise expressed, the 

reason and purpose of the law shall control and the strict letter thereof shall be 

disregarded.” (internal quotation marks and citations omitted)). The absurd result 
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here is the destruction of the character of neighborhoods and communities across 

North Carolina. Furthermore, proper statutory construction requires an 

interpretation that does not render meaningless any aspect of the statute. 

¶ 53 Notably, the only other time a North Carolina court has considered subsection 

13, it adopted this interpretation. In Rice v. Coholan, 205 N.C. App. 103, 695 S.E.2d 

484 (2010), the Court of Appeals held the exception covered all restrictions applicable 

to a common scheme of development. The development at issue in Rice was restricted 

to residential purposes, however it also had restrictions governing the location, 

number, and architecture of any buildings constructed on the lots. Rice, 205 N.C. App. 

at 114, 695 S.E.2d at 491. The court noted the restrictions were “substantially 

common restrictions applicable to all lots of like character” and were a general plan 

of development. Id. at 114, 695 S.E.2d at 492. Accordingly, the court held the 

restrictive covenants were not extinguished by the Act and thus enforceable. Id.

¶ 54 As mentioned above, the Act was amended in committee to add subsection 13 

in response to concerns from Mecklenburg County residents that many residential 

neighborhoods outside Charlotte’s zoning jurisdiction would be stripped of their 

protective covenants. Note, Marketable Title Act at 220 n.83. In amending the statute 

to include the exception, “preservation of uniform residential sections through 

equitable servitudes, patterned to function like zoning ordinances, prevailed over 

notions favoring individual aspects of private ownership and court reluctance to 
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honor titles encumbered by equitable servitudes.” Id. at 220. 

¶ 55 Moreover, former Senator Michael P. Mullins, who introduced the amendment 

to add subsection 13, furnished an Appellate Rule 31 certificate for use by defendants’ 

counsel to provide the following insight in the present case: 

My purpose and intent in proposing that amendment was 

to protect from extinguishment under the Marketable 

Land Title Act then under consideration all prior recorded 

residential covenants and restrictions applicable to a 

“general or uniform scheme of development”, and not 

simply one such restriction that “restrict(s) the property to 

multi-family or single-family use or simply to residential 

use . . . (and) that’s it. Anything else is gone,” as the Court 

[of Appeals] had incorrectly concluded. To the contrary, my 

purpose and intent, and that of my proposed amendment –

as expressed in the first sentence thereof – was to protect 

collectively all otherwise enforceable restrictive “covenants 

applicable to general or uniform schemes of development” 

restricting property for “residential use”, and not simply 

those which limited such property to “multi-family or 

single-family use or simply to residential use,” respectively. 

Though one senator’s statement does not establish the General Assembly’s intent in 

adding subsection 13, it certainly is instructive when deciding between two clashing 

meanings of an ambiguous statute. The hyper-literal reading adopted by the majority 

ignores this legislative history. In doing so, the majority strips property owners of the 

very protective covenants that subsection 13 was designed to protect. 

¶ 56 Furthermore, the General Assembly’s purpose in promulgating the Act was “to 

expedite the alienation and marketability of real property.” Heath, 309 N.C. at 488, 

308 S.E.2d at 247 (emphasis added). The majority’s approach, which results in a sort 
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of line-item vetoing of protective covenants that are part of a general or uniform 

scheme of development, does not accomplish this purpose. Rather, allowing 

substantially common covenants to remain valid does not add any burden on a 

purchaser of real property. Under the majority’s test, that purchaser already has a 

duty to search his chain of title beyond the thirty-year threshold to find the covenant 

that specifically restricts the property to residential use only. Because that covenant 

must be part of a general or uniform scheme of development to be excepted, it will 

appear in the same document as the other related common covenants. As such, the 

title searcher will have found the entire scheme without any additional effort. Thus, 

a hyper-literal reading of the second element, namely, that the covenants must 

operate to “restrict the property to residential use only,” does not advance the Act’s 

purpose. Because the majority’s approach contradicts the reason for subsection 13’s 

existence and fails to advance the Act’s general purpose, it is apparent that the more 

contextual reading, which allows all substantially common covenants within a 

residential use only subdivision to survive extinguishment, is more aligned with the 

General Assembly’s intent.2

¶ 57 Moreover, subsection 13’s second sentence reads: “The excepted covenant may 

 

2 This contextual reading is also more appropriate because it avoids a potential 

constitutional question regarding the extinguishment of property rights without notice or

hearing. See In re Arthur, 291 N.C. 640, 642, 231 S.E.2d 614, 616 (1977) (“Where one of two 

reasonable constructions will raise a serious constitutional question, the construction which 

avoids this question should be adopted.”); see also U.S. Const. amend. V. 
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restrict the property to multi-family or single-family residential use or simply to 

residential use.” N.C.G.S. § 47B-3(13). This sentence appears to clarify the 

inclusiveness of the “residential use only” requirement in the second element of the 

first sentence. In other words, the subject subdivision could include multi-family 

units only, single-family units only, or both. This sentence, however, does not say that 

the only covenants covered by subsection 13 are those single covenants that 

specifically limit a property to residential use. As such, the second sentence does not 

add another element that excepted covenants must meet but simply clarifies an 

already existing element within the first sentence. 

¶ 58 The third and final sentence of subsection 13 states: “Restrictive covenants 

other than those mentioned herein which limit the property to residential use only 

are not excepted from the provisions of Chapter 47B.” Id. This sentence explains that 

all restrictive covenants which fail to meet the elements laid out in the first sentence 

are subject to N.C.G.S. § 47B-2(c)’s cleansing provision. Notably, according to the 

common law, 

[a] restriction which is merely a personal covenant with the 

grantor does not run with the land and can be enforced by 

him only. . . . In the absence of a general plan of 

subdivision[ ] development and sales subject to uniform 

restrictions, restrictions limiting the use of a portion of the 

property sold are deemed to be personal to the grantor and 

for the benefit of land retained.

Stegall v. Hous. Auth. of City of Charlotte, 278 N.C. 95, 100–01, 178 S.E.2d 824, 828 
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(1971) (citations omitted). Therefore, the third sentence preserves this common law 

rule by clarifying that such personal covenants are extinguished under N.C.G.S. 

§ 47B-2(c).

¶ 59 Having clarified subsection 13’s ambiguity, it is clear that all nine restrictive 

covenants for Country Colony meet subsection 13’s three elements and are thus 

excepted from extinguishment under N.C.G.S. § 47B-2(c). As mentioned above, the 

third element is not at issue. The second element is satisfied because the first 

covenant explicitly states that “[a]ll lots in the tract shall be known and described 

and used for residential lots only.” Thus, the covenants have the cumulative effect of 

creating a residential use only subdivision. 

¶ 60 The first element is also satisfied because all nine covenants are “applicable to 

a general or uniform scheme of development.” N.C.G.S. § 47B-3(13). “The primary 

test of the existence of a general plan for the development or improvement of a tract 

of land divided into a number of lots is whether substantially common restrictions 

apply to all lots of like character or similarly situated.” Sedberry, 232 N.C. at 711, 62 

S.E.2d at 91. Here covenants 2 through 9 read as follows: 

2. No structure shall be erected, altered, placed or 

permitted to remain on any residential building plot other 

than one detached single-family dwelling not to exceed two 

and one-half stories in height and a private garage, and 

other outbuildings incidental to residential use of the plot.

3. No building shall be erected on any residential building 

plot nearer than 100 feet to the front lot line nor nearer 
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than 20 feet to any side line.

4. No noxious or offensive trade or activity shall be carried 

on upon any lot nor shall anything be done thereon which 

may be or become an annoyance or nuisance to the 

neighborhood.

5. No trailer, basement, tent, shack, garage, barn or other

outbuilding erected in the tract shall at any time be used 

as a residence temporarily or permanently, nor shall any 

structure of a temporary character be used as a residence.

6. No dwelling costing less than $10,000.00 shall be 

permitted on any lot in the tract. The ground floor area of 

the main structure, exclusive of one story open porches and 

open car ports, shall be not less than 1200 square feet in 

case of a one story structure. In the case of a one and onehalf, two or two and one-half story structure, the ground 

floor area of the main structure, exclusive of one-story open 

porches or open car ports, shall not be less than nine 

hundred square feet. (It being the intention to require in 

each instance the erection of such a dwelling as would have 

cost not less than the minimum cost provided if same had 

been erected in January, 1952.)

7. A right of way and is and shall be reserved along the rear 

of each lot and along the side line of each lot where 

necessary, for pole lines, pipes and conduits for use in 

connection with the supplying public utilities service [sic] 

to the several lots in said development.

8. In the event of the unintentional violation of any of the 

building line restrictions herein set forth, the parties 

hereto reserve the right, by and with the mutual written 

consent of the owner or owners, for the time being of such 

lot, to change the building line restrictions set forth in this 

instrument; provided, however, that such change shall not 

exceed ten percent of the original requirements of such 

building line restrictions.

9. None of the lots shown on said plat shall be subdivided 
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to contain less than two acres and only one residence shall 

be erected on each of said lots. 

Each of these covenants either governs the types and locations of buildings that can 

be erected on the lots, governs the types of activities permitted on the lots, creates 

rights of way, allows for alterations to existing building lines, or governs the size of 

the lots. As conceded by the majority, there is no question that these restrictions are 

“substantially common.” Id. Moreover, none violate public policy, thus meeting the 

statutory test of being otherwise enforceable. Therefore, all of Country Colony’s 

covenants fall within subsection 13’s exception and should survive extinguishment 

under N.C.G.S. § 47B-2(c). See N.C.G.S. §§ 47B-2(c), -3(13). 

¶ 61 Because subsection 13’s language is ambiguous, this Court must avoid a hyperliteral reading and instead adopt a reading that gives every word meaning and 

appropriately considers the context and purpose behind the statute’s promulgation. 

If this Court were to adopt such a contextual reading, it would see that the General 

Assembly intended to except from extinguishment those sets of protective covenants 

under a general or uniform scheme of development which collectively operate to 

restrict a subdivision to residential use. The Court of Appeals’ decision should be 

reversed. Sadly, the majority’s decision will likely result in the destruction of the 

character of neighborhoods and communities across North Carolina. I respectfully 

dissent. 

Justices HUDSON and EARLS join in this dissenting opinion.