Roth v. Connor

• Decision Date: 10 December 1998
• Docket Number: No. A99A0088.,A99A0088.
• Parties: ROTH et al. v. CONNOR et al.
• Court: Georgia Court of Appeals

510 S.E.2d 550

235 Ga. App. 866

ROTH et al. v. CONNOR et al.

No. A99A0088.

Court of Appeals of Georgia.

December 10, 1998.

Reconsideration Denied January 4, 1999.

Certiorari Denied April 30, 1999.

Ray & McKinney, Robert M. Ray, Jr., Michael K. McKinney, Ellijay, for appellants.

Clifford S. Lancey, Ellijay, for appellees.

ELDRIDGE, Judge.

On May 30, 1995, Connor Construction & Manufacturing Company, Inc., defendant-appellee, conveyed by warranty deed, executed by John Connor as president, to James B. and Andrea M. Roth, plaintiffs-appellants, Lot 2 of the Rainbow Mountain Subdivision, which had a new octagonal 1,600-square-foot living space cabin on it. Attached to the warranty deed were certain easements and restrictive covenants. Nowhere in either the warranty deed or the easements and restrictive covenants was it stated that the restrictive covenants were filed of record in the deed records of the Clerk of the Superior Court for Gilmer County or in the Gilmer County Planning Office. In fact, there was no such filing. Further, the sales contracts made no reference to any restrictive covenants.

However, plaintiffs contended that, in the sales promotion, John Connor had represented to them that restrictive covenants required a minimum 1,600 square feet of living space applied to all houses in the Rainbow Mountain Subdivision and did not disclose that such restrictive covenants applied only to Phase I and not to Phase II of the subdivision. Subsequently, plaintiffs discovered houses near their lot which appeared to be less than 1,600 square feet of living space.

On July 8, 1996, plaintiffs sued the defendants in four counts. The defendants timely answered separately. On November 21, 1997, defendants moved for summary judgment. On November 21, 1997, the defendants filed in support of such motion the affidavit of John Connor; a portion of what appeared to be a deposition; and copies of the contracts, warranty deed, and covenants. Plaintiffs in opposition to the motion filed a number of affidavits. The Gilmer County Land Development Ordinance as amended was tendered, but was neither a certified copy nor accompanied by an appropriate affidavit authenticating it as an ordinance duly enacted by the Commissioners of Gilmer County in order to satisfy OCGA § 9-11-56(e).

On March 16, 1998, the trial court entered summary judgment for the defendants against the plaintiffs. Plaintiffs timely filed their notice of appeal.

1. Plaintiffs' first enumeration of error is that the "trial court committed harmful reversible error in deciding whether the restrictive covenants applied to all of Rainbow Mountain Subdivision or just to Phase I of Rainbow Mountain." We do not agree.

(a) This case differs from most restrictive covenant cases in that the grantor created restrictive covenants by deed only as to the square footage of living area in construction of residential dwellings in some lots sold, but not as to a reserved separate tract in the Rainbow Mountain Subdivision that he later conveyed as lots with a different restrictive covenant as to the square footage of living space construction. Here, the plaintiff-grantees in Phase I of the subdivision sued to enforce and impose the same building restriction applicable to their lot to lots sold by the grantor of retained land under Phase II, which had a different construction limitation. In this case, there was no recorded subdivision plat for the entire tracts of Phases I and II of Rainbow Mountain with the restrictive covenant requiring 1,600 square feet of living space, nor were the restrictive covenants separately recorded as to the entire subdivision or incorporated by reference into a recorded deed to the entire subdivision. In fact, no subdivision plat containing restrictive covenants applicable to the entire Phase I was made part of the record. Southeast Toyota Distrib. v. Fellton, 212 Ga.App. 23, 440 S.E.2d 708 (1994). The restrictive covenants were attached to individual warranty deeds so that only those lots were subject to the restrictive covenants.

Limitations and restrictions on the use of one's own land will not be enlarged or extended by judicial construction of the covenant and will be construed in favor of the owner of the land sought to be restricted. The grounds for such interference by the superior court must be based upon evidence which is clear and beyond reasonable doubt of the existence, application, and intent of express restrictive covenants. England v. Atkinson, 196 Ga. 181, 184-185(1), 26 S.E.2d 431 (1943); King v. Baker, 214 Ga.App. 229, 235(5), 447 S.E.2d 129 (1994). Restriction on the use of land must be clearly established, not only as to the restrictions, but also as to the land restricted, and restrictions will be strictly construed. Williams v. Waldrop, 216 Ga. 623, 624(1), 118 S.E.2d 465 (1961); Spencer v. Poole, 207 Ga. 155, 60 S.E.2d 371 (1950).

"This manifest intent being the cardinal rule of construction will control over the above mentioned rule of strict construction against restrictions. If the intent is plainly manifest no ambiguity exists, and it is only in cases of ambiguity that the rule of strict construction applies." Voyles v. Knight, 220 Ga. 305, 306(2), 138 S.E.2d 565 (1964). "Where a restrictive covenant in a deed is involved, the legal presumption is in favor of the free use of the property by its owner, and any doubt will be construed in favor of the [owner]. [Cit.]" Burch v. Ragan, 92 Ga.App. 605, 609(2), 89 S.E.2d 541 (1955); see also England v. Atkinson, supra. Where the land, use, and scope of the restrictions are unclear, such ambiguity requires strict construction.

" An owner of a tract of land may agree with purchasers of portions of the tract to restrict the entire tract to residential [construction of 1,600 square feet of living space] in order to increase the marketability of the land. Parties most often assure enforcement of such an agreement by reducing the specific restrictions on the land to writing, specifying the property restricted, and then recording the restrictions and the property description with the proper authorities." Knotts Landing Corp. v. Lathem, 256 Ga. 321, 322-323(2), 348 S.E.2d 651 (1986). However, this was not done in this case. Each grantee in Phase I received a warranty deed that attached and incorporated easements and restrictive covenants that bound only such lot for the benefit of the grantor and others who took from the common grantor. In short, defendant, as grantor, could impose restrictive covenants that apply to Phase I, but by reservation, would not apply to Phase II, and the grantor may still enforce the covenants as to Phase I only.

"While the general rule is that the owner of land in fee has a right to use it for any lawful purposes, and any claim that there are restrictions upon such use must be clearly established, the owner of the fee has the right to sell his land subject to such reservations or restrictions as he may see fit to impose, provided they are not contrary to public policy, and such reservations or restrictions create an easement, or servitude in the nature of an easement, upon the land conveyed for the benefit of the adjoining property of which the grantor remains the owner, and a grantee and a remote grantee from the former owner who imposes the restriction are entitled to the same remedy for its enforcement as was their grantor. The fact that other or different restrictions were incorporated in the plaintiffs' deeds, or that their lot[ ] might not be subject to the same restrictions as the defendant's [Phase II] lot, would not deprive [defendants] of the right to enforce the restriction placed upon the [plaintiffs'] lot by the [defendants as] common grantor of both the plaintiffs and the defendant[s' grantees of Phase II]." (Citations omitted.) Grove Lakes Subdivision v. Hollingsworth, 218 Ga. 443, 444-445, 128 S.E.2d 499 (1962). See also Cawthon v. Anderson, 211 Ga. 77, 78(1), 84 S.E.2d 66 (1954); Spencer v. Poole, supra at 156(1), 60 S.E.2d 371. Thus, no express restrictive covenant for Phase I as to construction existed that imposed a square footage limitation of 1,600 square feet of liveable area as to Phase II of Rainbow Mountain Subdivision.

(b) While no express restrictive covenant as to Rainbow Mountain Subdivision was created by recording either a plat with restrictive covenants or unrecorded restrictive covenants as to the entire subdivision, each lot in Phase I had restrictive covenants attached to the warranty deeds, so that Phase I was subject to the same restrictive covenants. Such subdivision developmental scheme may have created an implied restrictive covenant for Phase II as well. Limitations or restrictions by implication on use of land are not favored and must be strictly construed against restrictions. See Sissel v. Smith, 242 Ga. 595, 596(2), 250 S.E.2d 463 (1978); see also Randall v. Atlanta Advertising Svc., 159 Ga. 217, 125 S.E. 462 (1924).

"Where the owner of land adopts a general scheme of dividing his land into lots for the purpose of selling them under express restrictions without reservations or limitations as to the use of the lots, and the restrictive covenants are for the benefit of the land retained, such a covenant as well as the lots sold mutually applies to all parties inter sese. However, where the owner subdivides his land into lots, and the restrictions imposed by him on the use of the lots are limited only to those lots where the deeds to purchasers specifically incorporate the restrictions, and are not expressly made applicable to all lands in the subdivision, to be sold or retained, such restrictions would apply to the unsold lots of the owner only by implication. In such a situation the restrictive clause must be construed in the light of the other facts of the record and intention of the parties. Limitations or restrictions as to the use of property by the owner are not...