Drive v. Nusloch
| Citation | 716 S.E.2d 603,311 Ga.App. 552,11 FCDR 2799 |
| Decision Date | 23 January 2012 |
| Docket Number | No. A11A0964.,A11A0964. |
| Parties | INTERCHANGE DRIVE, LLC et al.v.NUSLOCH et al. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
McCorkle & Johnson, David H. Johnson, Phillip R. McCorkle, Mathew M. McCoy, Thomas M. Gore, Savannah, for appellant.Weiner, Shearouse, Weitz, Greenberg & Shawe, William Gouline Glass, Savannah, for appellee.PHIPPS, Presiding Judge.
This case involves a dispute between subdivision lot owners and the purchaser of certain subdivision property. The lot owners sought access to common areas and a recreation area within the subdivision, and the purchaser denied such access, taking the position that it was entitled to use that property for its own purposes. The trial court ruled in favor of the lot owners, allowing them rights to use, access and enjoy the subdivision's common areas and recreation area as set forth on the subdivision plat and in the subdivision's restrictive covenants.1 The purchaser, Interchange Drive, LLC (“Interchange”), appeals the trial court's ruling in favor of the lot owners. Because the subdivision property at issue remained subject to the subdivision's restrictive covenants when Interchange purchased it, we affirm.
Interchange purchased the subdivision property at issue in 2009. To resolve the dispute in this case, however, we must review a series of real estate transactions between numerous entities, beginning in 2005.
On July 7, 2005, Genesis Real Estate Group, LLC (“Genesis”) purchased two parcels of land from Erling Speer by warranty deed. That same day, Genesis executed a deed to secure debt and assignment of rents (the “security deed”), conveying those parcels to Wachovia Bank, National Association (“Wachovia”), as security for a loan. The security deed was recorded on July 13, 2005.
Genesis was the developer of Habersham Plantation subdivision. On December 13, 2005, Genesis recorded a plat for the subdivision. The plat showed subdivided lots, streets, areas designated “common area” and an “Active Recreation Area” (the “ARA”), located next to the Grove River. The plat stated that all common areas were to be maintained by the Habersham Plantation Homeowners Association (the “Association”) and that future uses of the common areas and the ARA must be approved by the Association. For the common areas, such uses could include a swimming pool, pool house, tennis courts, and walking trails; for the ARA, such uses could include a river clubhouse with kitchen facilities and dock.
On December 15, 2005, Genesis, as declarant, recorded the Declaration of Covenants, Conditions and Restrictions for Habersham Plantation (the “Habersham Covenants”). The land initially subjected to the Habersham Covenants included Lots 1–11 and 21–55 of the subdivision, and Genesis reserved the right to subject additional subdivision property to the Habersham Covenants by recording a supplemental declaration describing the property being subjected. The Habersham Covenants defined such a “Supplemental Declaration” as “[a]n instrument recorded pursuant to Article IX which subjects additional property to this Declaration, and/or imposes additional restrictions and obligations on the land described in this instrument.”
The Habersham Covenants defined a “Common Area” as “[a]ll real and personal property, including easements, which the Association owns, leases or otherwise holds possessory or use rights in for the common use and enjoyment of the Owners.” The Habersham Covenants held the Association “responsible for management, operation, and control of the Common Area.” Also within the Habersham Covenants, Genesis, as declarant, granted each owner a “nonexclusive right and easement of use, access, and enjoyment in and to the Common Area.”
On October 1, 2006, Genesis quitclaimed its interests in the Habersham Plantation property and assigned its rights as declarant under the Habersham Covenants to Genesis At Habersham, LLC. The quitclaim deed and assignment were recorded on November 13, 2006.
On December 31, 2007, Genesis At Habersham recorded a Declaration of Covenants, Conditions, and Restrictions for Common Areas of Habersham Plantation Subdivision to clarify that the ARA was a common area, as defined in the Habersham Covenants, and to expressly prohibit the development of the ARA and the adjoining salt marsh and the use of such property for any purpose other than as a common area, as defined in the Habersham Covenants.
Genesis sold lots in the Habersham Plantation subdivision to individual purchasers. To convey title to the lots, Genesis obtained quitclaim deeds from Wachovia and issued warranty deeds to the purchasers. The quitclaim deeds conveyed the property, together with all easements and appurtenances, by lot number and specifically referred to the recorded Habersham Plantation subdivision plat for the property description. The warranty deeds also conveyed the property by lot number and specifically referred to the recorded Habersham Plantation subdivision plat for the property description.
Genesis defaulted on its loan with Wachovia, and Wachovia began foreclosure proceedings, as evidenced by a deed under power of sale, which was recorded on August 21, 2008. The deed recited that Wachovia had conducted a foreclosure sale of the subdivision property conveyed by the security deed, less and except the lots previously sold, and that Wachovia was the highest bidder at the sale. Genesis, acting by and through Wachovia, conveyed the subdivision property to Wachovia, specifically excluding the lots previously sold, and referring to the subdivision plat as a property description for those lots. The conveyance was expressly made subject to the Habersham Covenants. On August 20, 2008, Genesis At Habersham conveyed its rights as declarant under the Habersham Covenants to Wachovia.
On March 19, 2009, Wachovia conveyed its Habersham Plantation property, less the lots previously sold, to the appellant, Interchange, by limited warranty deed. The conveyance was expressly made subject to any matters to which the deed under power of sale were subject. In the limited warranty deed, Wachovia also quitclaimed all rights as declarant under the Habersham Covenants, as supplemented, amended and modified.
Thereafter, Interchange took the position that it had no obligation to allow the lot owners access to any recreational facilities, and that it intended to use the ARA for its own purposes.
The appellees, Jerry Nusloch and other lot owners in the Habersham Plantation subdivision, sued Interchange and the Association, seeking (among other remedies) a declaratory judgment that they hold easements and rights to use, access and enjoy the common areas and the ARA; that Interchange and the Association are precluded from developing the ARA and adjoining salt marsh or using that property for any purpose other than as a common area; and that the Association is required to own and maintain the common areas and the ARA.
Interchange and the Association sought summary judgment, arguing that any easement rights the lot owners had obtained with respect to the common areas and the ARA were junior to Wachovia's senior lien and were extinguished when Wachovia foreclosed.2 The lot owners responded and also moved for summary judgment, arguing that Wachovia subjected the property it acquired within Habersham Plantation to the subdivision plat and the Habersham Covenants when it released lots from its security deed by reference to the plat. The lot owners further argued that Wachovia subjected the property it acquired to the Habersham Covenants in the deed under power of sale and the subsequent limited warranty deed to Interchange.
The trial court determined that Wachovia's reference in the quitclaim deeds to the recorded plat to describe the property being released constituted an acknowledgment of the easements shown on the plat, thereby incorporating and ratifying the plat. The court further determined that Wachovia had subrogated its rights to the property at issue in the deed under power of sale it took from Genesis and the limited warranty deed it gave to Interchange because both deeds were made subject to the Habersham Covenants. On appeal, Interchange takes issue with both of those determinations.
Interchange appeals the grant of the lot owners' motion for summary judgment and the denial of its motion for summary judgment. We review a grant or denial of summary judgment de novo and view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant.3
The Habersham Covenants created an easement in favor...
To continue reading
Request your trial
-
Gray v. Shepard
...expressly stated that the Property was being conveyed subject to the encumbrance in the Declaration. Cf. Interchange Drive, LLC v. Nusloch , 311 Ga.App. 552, 716 S.E.2d 603, 607 (2011) (because the foreclosure deed to lender expressly stated that it was subject to the "Habersham Covenants" ......
-
Homelife On Glynco, LLC v. Gateway Ctr. Commercial Ass'n, Inc.
...with covenants and restrictions, the grantee consents to be bound by such covenants and restrictions." Interchange Drive, LLC v. Nusloch , 311 Ga. App. 552, 557, 716 S.E.2d 603 (2011) ; see Great Water Lanier , 344 Ga. App. at 188, 811 S.E.2d 1 (by accepting deed that unambiguously conveyed......
-
Great Water Lanier, LLC v. Summer Crest at Four Seasons on Lanier Homeowners Ass'n, Inc.
...only that which it owns and that a grantee can take no greater title than that held by the grantor. Interchange Drive v. Nusloch, 311 Ga. App. 552, 556-557, 716 S.E.2d 603 (2011). Thus, when a declarant burdens its property with a set of covenants, conditions, and restrictions that run with......
-
Builders v. Synovus Bank
...Finance and Foreclosure Law § 8:8. See Hornsby v. Holt, 257 Ga. 341, 342–343(1), 359 S.E.2d 646 (1987); Interchange Drive, LLC v. Nusloch, 311 Ga.App. 552, 556, 716 S.E.2d 603 (2011). Following the foreclosure sale, therefore, Griffin Builders had no further rights in the property. Accordin......