Lovell v. Hartness

• Decision Date: 22 August 2001
• Docket Number: No. A01A1072.,A01A1072.
• Parties: LOVELL et al. v. HARTNESS.
• Court: Georgia Court of Appeals

554 S.E.2d 283

251 Ga. App. 307

LOVELL et al. v. HARTNESS.

No. A01A1072.

Court of Appeals of Georgia.

August 22, 2001.

Carey, Jarrard & Walker, Theodore W. Robinson, Gainesville, for appellants.

Adams, Ellard & Frankum, Cadman R. Kiker, Jr., Clarkesville, Sean A. Black, Toccoa, for appellee.

ELDRIDGE, Judge.

The Supreme Court of Georgia transferred this case because the case involves issues of law and not equity on an action for declaratory judgment of what appears to be a case involving title to land; however, the case depends upon the Declaration of Covenants to determine if a one-acre parcel ("Property") adjacent to Duane Hartness' residential Lot 20 and between his lot and the fourteenth hole of the golf course is either a lot or comes under "Golf Course Facilities" within the meaning of the Declaration.

On cross-motions for summary judgment, Hartness and Carlos Lovell submitted the issue of whether the Property was a residential lot or a part of the Golf Course Facilities under the Declaration of Covenants governing "The Orchard," a golf course and residential development in Habersham County, which was filed by the developer Orchard Limited Partnership ("OLP") on November 21, 1988. The trial court ruled that the Property came under the class of property classified as Golf Course Facilities under the Declaration. We agree and affirm.

The Property is one acre of 734.1 acres described in the Declaration of Covenants as Exhibit A; however, at the time when the Declaration was recorded, no plat showed the individual lots, Common Areas, or Golf Course Facilities which comprised the three classes of property under the Declaration subject to the covenants, restrictions, and reserved rights. However, on September 13, 1989, the final plat of Phase II of the subdivision was recorded and showed the Property as part of the Golf Course Facilities on the fourteenth hole and not platted as a residential lot; further, the Property at that time had no lot designation as did all residential lots. The Property was never assessed for association fees as were all residential lots. Several subsequent amendments to the Declaration of Covenants and Restrictions for The Orchard were filed, but none directly affected the Property.

There was no subsequent plat made of the subdivision lots, Common Areas, and Golf Course Facilities. The surveyor of The Orchard specifically left the Property out of the subdivision lots and in the Golf Course Facilities in the plat.

In May 1993, Carlos Lovell had the same surveyor plat the Property and recorded the plat as a lot for the first time in an individual plat of the Property. Virgil Lovell claimed that the Property was "inadvertently" omitted in platting and designating lots both in 1988 and 1989; Carlos Lovell alleged that the surveyor, Hubert Lovell, told Carlos Lovell and Virgil Lovell that the Property had been missed in Phase II. Carlos Lovell claimed that he knew that the Property was a lot even if not recorded on the 1988 or 1989 plats as a lot. However, Hubert Lovell testified that in "preparing the survey [in 1989 for Phase II] I advised Carlos Lovell that I was leaving the property described in this lawsuit out of the subdivision and in the Golf Course Property because it was below the dam and the large watershed above it." Although there exists a material issue of fact as to intent and as to when actions were taken, the legal effect of the earlier conveyance under the Declaration caused covenants running with the land to attach, negating any factual dispute.

In the Declaration, OLP reserved the right to modify boundary lines, plat, and re-plat the Golf Course Facilities. OLP also retained the right to add additional property to The Orchard subdivision, subject to the Declaration, without the consent of the owners within the development. Under the retained powers of OLP as developer of The Orchard the right and power to make reasonable modifications, changes, or cancellations to any provision pertaining to the development under the Declaration. The out-parceling of property came from Common Areas property that was marked for the developer's exclusive benefit on the recorded plats.

Plaintiff, Hartness, owns a one-half undivided interest in Lot 20, Phase II of The Orchard, which was conveyed to him on November 22, 1995, from Colin Halfwassen; on December 3, 1992, Halfwassen acquired his title by deed from OLP.

The parties agree that the Property is not Common Areas property of the subdivision. Randall W. Barfield, Jr., owner of Lot 21 adjoining the Property on the opposite side of the Property from Hartness, testified that when he purchased his lot that OLP agents represented to him that the Property was Commons Areas property that would not be developed.

Carlos Lovell owned all of the land from which The Orchard was created. Initially, the Property was owned by Carlos Lovell and OLP who conveyed it to The Orchard Club, Inc. in 1992 as part of the Golf Course Facilities. The Orchard Club as a nonprofit organization was the Golf Course Facilities and did not own lots for sale. The Property was not held by OLP among the inventory of residential lots that it sold. All the Golf Course Facilities owned by The Orchard Club or its successors in title were subject to the covenants and restrictions of the Declaration.

In 1992, OLP through Carlos and Fred Lovell controlled The Orchard Club and Virgil Lovell controlled its books; together, they determined to convey the Property to Carlos Lovell. On September 13, 1993, The Orchard Club quitclaim deeded the Property to Carlos Lovell, father of Virgil Lovell, with a legal description referencing the 1993 plat prepared by Hubert Lovell.

At that time and at all times previous, VEL, Inc. was the general partner of OLP, and Virgil Lovell was the sole owner. Virgil Lovell was the initial president of The Orchard Club Carlos Lovell conveyed the Property to OLP shortly before the sale of the Property by OLP to David McEwen. OLP sold the Property to McEwen for $60,000.

On May 21, 1998, the Golf Course Facilities were sold to Gordy Management Unlimited, Inc. with the legal description given by plat book references only. The Property was not conveyed to Gordy, nor has Gordy used or maintained the Property as a portion of the Golf Course Facilities at any time. Prior to this, the Property was maintained by The Orchard Club as part of the Golf Course Facilities, and some of it was maintained by OLP. OLP now maintains the Property exclusively.

Thus, title to the Property is in McEwen, having been conveyed such interest by OLP with prior grantors Carlos Lovell and The Orchard Club.

However, who holds title to the Property is irrelevant, because the Property is subject to the covenants running with the land created under the Declaration governing the use of the Property by any owner. OCGA § 44-5-60(a); Smith v. Pindar Real Estate Co., 187 Ga. 229, 236(3), 200 S.E. 131 (1938).

The conveyance of the Golf Course Facilities to The Orchard Club by deed created a privity of estate in it from the...