The biggest open question in NC covenant law still has no answer
The biggest open question in NC covenant law still has no answer
2026-09-12 · North Carolina · Courts · Reported — unconfirmed
No published North Carolina appellate decision resolves whether the Marketable Title Act extinguishes planned-community covenants older than thirty years — and cases raising it are reported to be pending at the Court of Appeals. This is a story about something that has not happened, and it is arguably the most consequential unresolved question in North Carolina community-association law.1
We are labelling this reported rather than decided, deliberately. What is confirmed is the absence of authority. What is reported, and not independently confirmed, is that the question is queued at the Court of Appeals.
What the question is
North Carolina's Marketable Title Act, Chapter 47B, is designed to simplify titles by extinguishing ancient interests. In broad terms, a person with an unbroken chain of record title for thirty years holds marketable record title free of claims predating that root of title, subject to statutory exceptions.
The question for community associations is whether, and when, a declaration of restrictive covenants recorded more than thirty years ago survives that. If it does not, the consequences are not marginal — an association whose declaration has been extinguished as to a given lot has no basis to levy assessments against it, no architectural control over it, and no covenant to enforce.
What the search of the courts' own databases shows
A sweep of the North Carolina Supreme Court and Court of Appeals opinion databases for Marketable Title Act and Chapter 47B references since January 2025 returns:
- No published decision resolving the question for planned-community or condominium covenants.
- Two unpublished opinions in which the argument surfaced and was rejected on the facts — DiFabio v. Wagner, COA25-996 (September 2, 2026), where covenants were held valid and enforceable and the Marketable Title argument rejected, and Charlotte Christian Assembly v. Romanelli, COA24-1023 (July 2, 2025). Under Rule 30(e)(3) an unpublished opinion of the Court of Appeals is not controlling authority and citation is disfavoured.
- One published decision applying the Act outside the community-association context.
So the state of the law is: nothing precedential, and two unpublished data points in which the associations' covenants survived.
Why this matters more in North Carolina than it might elsewhere
Two features of North Carolina law make this question unusually live.
The state has a lot of old declarations. The Planned Community Act, Chapter 47F, applies in full only to communities created on or after January 1, 1999. A very large number of North Carolina subdivisions predate it and are governed by declarations recorded in the 1960s, 1970s and 1980s, operating on common-law covenant principles plus whatever Chapter 47F provisions the statute applies retroactively. Those are precisely the instruments a thirty-year rule would reach.
Nothing in the reform agenda addresses it. None of the HOA bills of the last three sessions — HB 444, SB 378, SB 1047, HB 993, HB 1174, HB 1212 — contains a Marketable Title Act provision. The legislative debate has been about fines, foreclosure, records and oversight. The question of whether older declarations are enforceable at all has not been on the table.
That means resolution will come from a court, not from the General Assembly, and the timing is outside anyone's control.
What this does and does not change for an association
The honest position is that this is a watching item for most associations and an urgent one for few. Distinguishing between them:
Lower concern: a community created on or after January 1, 1999, or one whose declaration has been amended, restated, extended or re-recorded within the last thirty years. Amendment and re-recording activity within the period generally supplies the recent record reference that the statutory scheme is built around.
Higher concern: a community whose original declaration was recorded more than thirty years ago and has never been amended or re-recorded; where lots have changed hands several times; and where deeds in the chain do not specifically reference the declaration. That is a genuinely common profile in older North Carolina subdivisions.
What not to do is over-correct. There is no published decision holding these covenants extinguished, and the two unpublished decisions in the window went the other way. The unresolved argument gives an association no reason to treat its declaration as lost, and none to stop enforcing or stop assessing.
What is worth doing, and is useful regardless of how this resolves:
- Know when your declaration was recorded, and when it was last amended or restated. Many boards do not.
- Check whether deeds in the community reference the declaration. Specific reference in the chain of title is the ordinary answer to a Marketable Title argument.
- Treat a declaration restatement as more valuable than it looks. Associations often defer restating an aged declaration because the amendment threshold is hard to meet. This question is one more reason it is worth the effort, alongside the ordinary benefits of modernising fine and enforcement provisions.
The honest limits of this report
Three, stated plainly.
The claim that three such cases are pending at the Court of Appeals comes from a community-management commentary, not from the courts' own docket. North Carolina's public appellate docket system does not reliably return docket sheets to public queries, so we could not confirm the number, the case names, or the schedule.
The absence of authority, by contrast, is confirmed — it comes from a sweep of the courts' own published opinion databases.
And nothing here is a prediction about how the question comes out. There are respectable arguments on both sides, the answer will likely turn on the interplay between Chapter 47B's exceptions and the particular chain of title, and a single appellate decision may resolve less than people hope.
What to watch next
Published Court of Appeals opinions. This is a question that will be answered by a citable decision or not at all, and the opinion filings index is where it will appear.
Secondarily, the 2027 long session. If a decision lands against associations before or during it, a legislative fix — an express exception for planned-community and condominium declarations — becomes the obvious response, and it is the kind of technical, industry-supported measure that passes in North Carolina when broad reform does not.
Related North Carolina HOA Topics
- North Carolina Court of Appeals — opinion filings index (searched for Marketable Title Act and Chapter 47B references since January 2025) ↩
- DiFabio v. Wagner, No. COA25-996 (N.C. Ct. App., 2 September 2026) — unpublished; Marketable Title Act argument rejected ↩
- Charlotte Christian Assembly v. Romanelli, No. COA24-1023 (N.C. Ct. App., 2 July 2025) — unpublished; restrictive covenants and the Marketable Title Act ↩
Stay on top of North Carolina HOA law
Every week: new North Carolina legislation, court rulings, and regulatory developments affecting condos, planned communities, and property managers. Free.
No spam. Unsubscribe anytime.