Canterbury Forest Ass'n v. Collins
| Decision Date | 28 March 2000 |
| Docket Number | No. A00A0924.,A00A0924. |
| Parties | CANTERBURY FOREST ASSOCIATION v. COLLINS. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Miller, Layfield & Lee, Lucius M. Layfield III, Harry O. Lee, Jr., Columbus, Melissa R. Reynolds, Macon, for appellant.
Bradford C. Dodds, Columbus, for appellee.
Canterbury Forest Association, a subdivision homeowners' association in Muscogee County, appeals from the trial court's entry of summary judgment on its complaint against Randy Collins. The complaint was based upon Collins' alleged violation of restrictive covenants on his property. The trial court found that such covenants had expired and, therefore, granted Collins' motion for summary judgment. This Court finds that the trial court erred, and reverses the trial court's order. The relevant facts, viewed in a light most favorable to the association, as nonmovant,1 are as follows: On June 15, 1975, Canterbury Forest Association adopted bylaws and various restrictive covenants for the subdivision's 26 lots. Collins purchased Lot 3 in August 1992; the deed included a provision which conveyed the land "subject to all valid and enforceable restrictive covenants and easements of record." On March 16, 1995, Collins and 24 of the remaining 25 Canterbury Forest Association members signed an "Amendment to the Property Owners Agreement and Covenants," wherein they agreed to extend the covenants for an additional 20 years, until June 15, 2015.
In September 1998, Collins constructed a 1,400-square-foot metal building on his property in alleged violation of the covenants. The association demanded that Collins remove the building, and when he refused, it filed suit against him. Following a hearing on Collins' motion for summary judgment, the trial court determined that the covenants had expired as a matter of law and granted Collins' motion. The association appeals from this order. Held:
1. In its first enumeration, the association contends that the trial court erred in determining that the covenants had expired 20 years after their adoption, pursuant to OCGA § 44-5-60(b), and were not automatically renewed under OCGA § 44-5-60(d)(1). We disagree.
(a) Under OCGA § 44-5-60(b), "covenants restricting lands to certain uses shall not run for more than 20 years" in counties with zoning laws. Therefore, unless renewed, such covenants expire as a matter of law after 20 years. From 1991 until July 1, 1993, OCGA § 44-5-60(d) permitted landowners to renew such covenants for an additional 20 years. See Ga. L.1991, p. 334, § 1. In order to renew the covenants, the statute required that the landowners approve the renewal by a two-thirds vote prior to the expiration dates of the covenants; that an attorney conduct a title search to confirm the record owners; and that several specific documents be prepared and filed in the county records. Id.
(Emphasis supplied.) OCGA § 44-5-60(d)(1). See also OCGA § 44-5-60(d)(2).
However, the automatic renewal provision of OCGA § 44-5-60(d), as amended in 1993, does not apply to the covenants at issue herein, so that the covenants expired in June 1995 after 20 years, pursuant to OCGA § 44-5-60(b). This finding is based upon the fact that the covenants were adopted in 1975, before the automatic renewal provision was adopted in 1993, and upon the Supreme Court of Georgia's decision in Appalachee Enterprises v. Walker, 266 Ga. 35, 36(1), 463 S.E.2d 896 (1995). In Appalachee, the Court held that the automatic renewal provision of the 1993 amendment to OCGA § 44-5-60(d) could not be applied retroactively and applied only to covenants adopted after July 1, 1993. Therefore, covenants adopted prior to that date automatically expire after 20 years pursuant to OCGA § 44-5-60(b).
(b) (i) Further, under the same analysis, since the covenants herein were adopted prior to the 1990/1991 amendments creating renewal procedures, such procedures cannot be retroactively applied to breathe new life into covenants which were slated to expire as a matter of law. Notably, the 1990/1991 amendments had already been replaced by the 1993 automatic renewal provision at the time the association attempted renewal of the covenants in 1995. (ii) Even if the 1990/1991 renewal procedures could be utilized to save these covenants, the association failed to strictly comply with the specific statutory requirements for such renewal. See Ga. L.1991, p. 334, § 1. The association admits that it failed to file an attorney's affidavit and other required paperwork but insists that it substantially complied with the provision. However, the record clearly shows that it did not substantially comply with the statute. Further, substantial compliance is not enough when such covenants serve to restrict a landowner's lawful use and enjoyment of his land. Since restrictions on private property are generally not favored in Georgia, they:
will not be enlarged or extended by construction, and any doubt will be construed in favor of the grantee. When it is sought to restrict one in the use of his own private property for any lawful purpose, the ground for such interference must be clear and indubitable. The word indubitable in its literal sense means without doubt.
(Citation and punctuation omitted.) England v. Atkinson, 196 Ga. 181, 184(1), 26 S.E.2d 431 (1943).
Accordingly, the trial court...
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