McLean v. Turtle Cove Property Ass'n, Inc.

• Decision Date: 10 September 1996
• Docket Number: No. A96A1130,A96A1130
• Citation: McLean v. Turtle Cove Property Ass'n, Inc., 475 S.E.2d 718, 222 Ga.App. 709 (Ga. App. 1996)
• Parties: McLEAN v. TURTLE COVE PROPERTY ASSOCIATION, INC.
• Court: Georgia Court of Appeals

Page 718

475 S.E.2d 718

222 Ga.App. 709

McLEAN v. TURTLE COVE PROPERTY ASSOCIATION, INC.

No. A96A1130.

Court of Appeals of Georgia.

Sept. 10, 1996.

Philip A. Johnson, Columbus, for appellant.

Anderson, Walker & Reichert, Travis M. Trimble, Macon, for appellee.

POPE, Presiding Judge.

Plaintiff Thomas McLean is the owner of six lots in Turtle Cove subdivision, a residential development in Jasper County, and defendant Turtle Cove Property Association, Inc. ("the Association") is a non-profit corporation whose members include all owners of property in the development. Pursuant to a Declaration of Covenants and Restrictions, the Association collects dues from the landowners and provides them with certain benefits. Plaintiff brought this action to enjoin it from collecting dues and exercising its powers with respect to four of his six lots. The trial court granted the Association's motion for summary judgment and denied plaintiff's, concluding that the rights and obligations set forth in the Declaration of Covenants and Restrictions apply to all lots in the subdivision despite the Association's failure to file additional declarations when additional lands were developed. We agree with the trial court and affirm. ¹

Turtle Cove subdivision began in 1971, with the development of a tract of approximately 297 acres. The Association was incorporated at that time, and the Declaration of Covenants and Restrictions was recorded. In subsequent years, numerous other tracts were added to the development. The original declaration clearly anticipated that this would happen: "the Developer ... shall have the right to bring Additional Property in future stages of development within the general plan or scheme of this Declaration. Additions, if any, shall comply with the standards set forth in this document. The additions shall be subject to assessment for their just share of the Association expenses." But the document also provided that when additions were made, a "Supplementary Declaration of Covenants and Restrictions" would be recorded, and it is undisputed that no supplementary declarations were filed. The plats of the additions referenced the original Declaration of Covenants and Restrictions, however. Moreover, plaintiff acknowledges that he knew of the Declaration of Covenants and Restrictions when he purchased his lots and that he--like all of the other landowners--assumed it applied to his four lots in the additions as well as his two lots in the original 297-acre tract. Indeed, the Association and the landowners have acted on that assumption for more than 20 years, with the landowners paying dues and the Association maintaining common recreational areas and providing other benefits to its members.

1. Plaintiff argues that since no one filed supplemental declarations when the subdivision grew to encompass additional tracts, the covenants and restrictions contained in the original declaration do not apply to lots in those additional tracts. But restrictive covenants may apply to lots in a planned development under an implied covenant theory, even if the developer failed to comply with all formalities, as long as the landowner had knowledge of the restrictive covenants at the time he purchased the property. See Westhampton, Inc. v. Kehoe, 227 Ga. 642, 645-647, 182 S.E.2d 430 (1971); Kilby v. Sawtell, 203 Ga. 256 (1), (2), 46 S.E.2d 117 (1948). Westhampton and Kilby involve the developer's failure to include the restrictive covenants in the deed while this case focuses on the developer's failure to record supplemental declarations, but we do not consider this distinction crucial: the point of those cases is that the developer's failure to do something he should have done to ensure notice does not render the covenants inapplicable as long as the purchaser...