Armstrong v. Roberts, 41446

• Decision Date: 20 February 1985
• Docket Number: No. 41446,41446
• Citation: Armstrong v. Roberts, 254 Ga. 15, 325 S.E.2d 769 (Ga. 1985)
• Parties: ARMSTRONG et al. v. ROBERTS et al.
• Court: Georgia Supreme Court

Page 769

325 S.E.2d 769

254 Ga. 15

ARMSTRONG et al. v. ROBERTS et al.

No. 41446.

Supreme Court of Georgia.

Feb. 20, 1985.

R. Matthew Martin, Hansell & Post, Atlanta, for William J. Armstrong et al.

Kenneth I. Sokolov, Atlanta, Ga., for David J. Roberts, et al.

GREGORY, Justice.

In October, 1979, the developer of Ashton Woods Subdivision, Sturgis Development Company (Sturgis), made and filed with the Clerk of Cobb Superior Court protective covenants for the benefit of those buying homes in the subdivision. These covenants purport to regulate uses which may be made of the individual lots. Paragraph four of these covenants states, in relevant part, "no building shall be located on any lot nearer than fifty (50) feet to the front lot line, unless approved in writing by Sturgis Development Company, Inc." In May, 1983, Sturgis sold the lot which is the subject of this appeal to Audry and Howard Oldmixon. Neither Sturgis nor the Oldmixons are a party to this appeal. According to the plaintiffs, this was the last lot Sturgis owned in the subdivision. In September 1983, defendant, a builder, obtained a written waiver from the president of Sturgis Development Company to modify the set-back line on this lot from fifty to thirty-five feet. The defendant thereafter began constructing a residence on this lot. At about the same time the Oldmixons conveyed the lot to the defendant. Plaintiffs, who own the adjacent lot, filed suit, praying for an interlocutory injunction to stop construction, and for damages. In alleging Sturgis's waiver of the set-back restriction was invalid, plaintiffs rely on Richmond v. Pennscott Builders, Inc., 43 Misc.2d 602, 251 N.Y.S.2d 845 (1964), and Fairways of County Lakes v. Shenandoah Development Corp., 113 Ill.App.3d 932, 69 Ill.Dec. 680, 447 N.E.2d 1367 (Ill.App. 2 Dist.1983), which hold that a developer has no authority to waive setback restrictions contained in covenants running with the land after divesting himself of his interest in the subdivision. The trial court denied the interlocutory injunction and this appeal followed.

While the law is certain that a developer may retain the right to waive restrictions contained in protective covenants, Davis v. Miller, 212 Ga. 836, 96 S.E.2d 498 (1957); Thompson v. Glenwood Community Club, Inc., 191 Ga. 196, 12 S.E.2d 623 (1940), ¹ the parties concede there is no Georgia authority clearly controlling a situation in which a developer waives such restrictions after he has divested himself of ownership in the subdivision. We acknowledge the New York and Illinois cases cited by plaintiffs. The rule announced in those authorities is a reasonable one. So long as the developer owns an interest in the subdivision being developed his own economic interest will tend to cause him to exercise a right to waive restrictions in a manner which takes into account harm done to other lots in the subdivision. There is some economic restraint against arbitrary waiver. After the developer has divested himself of all interest in the subdivision this economic restraint is lacking. We adopt the New York and Illinois rule. A developer of a subdivision who reserved the authority to waive restrictions in covenants running with the land no longer possesses that authority after divesting himself of his interest in the subdivision.

While the foregoing is the rule of law to be applied in this case, other considerations come to bear on the matter of injunctive relief.

In considering "an application for an interlocutory injunction there should be a balancing of the conveniences and a consideration of whether greater harm might be done by...