AMBERFIELD HOMEOWNERS ASSOCIATION, INC.
YOUNG et al.
ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
Ellington, Presiding Judge.
of homeowners in the Amberfield subdivision in Gwinnett
County filed this declaratory judgment action, seeking a
declaration that a certain amendment to the governing
documents of the Amberfield Homeowners Association, Inc. is
null and void. The amendment expressly authorized the
Association to enter into an agreement with a nearby private
swim and tennis club. Under the agreement, the club granted
an easement giving the association's members the right to
use the club's facilities as members. The agreement
provided that club fees would be added to the assessments
collected from members by the Association and would in turn
be remitted by the Association to the club.
complaint alleged, inter alia, that the amendment to the
governing documents was void on its face, alleging
specifically that Georgia law and the governing documents of
the Association do not permit the Association to force the
plaintiffs, without their consent, to be members of a private
club that is not part of the Association and do not permit
the Association to set itself up as a debt collector for a
third party entity over which the Association has no legal
control or authority.
parties filed cross-motions for summary judgment. The trial
court determined that the amendment was void and granted the
plaintiffs' motion for summary judgment. The trial court
also denied the Association's cross-motion for summary
judgment. The Association appeals, challenging both rulings.
For the reasons explained below, we reverse.
judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law[.]" OCGA
§ 9-11-56 (c).
[A] defendant who will not bear the burden of proof at trial
need not affirmatively disprove the nonmoving party's
case, but may point out by reference to the evidence in the
record that there is an absence of evidence to support any
essential element of the nonmoving party's case. . . .
Summary judgments enjoy no presumption of correctness on
appeal, and an appellate court must satisfy itself de novo
that the requirements of OCGA § 9-11-56 (c) have been
met. In our de novo review of the grant of a motion for
summary judgment, we must view the evidence, and all
reasonable inferences drawn therefrom, in the light most
favorable to the nonmovant.
and punctuation omitted.) Cowart v. Widener, 287 Ga.
622, 624 (1) (a) (697 S.E.2d 779) (2010). When, as in this
case, the parties file cross-motions for summary judgment,
"each party must show that there is no genuine issue of
material fact regarding the resolution of the essential
points of inquiry and that each, respectively, is entitled to
summary judgment; either party, to prevail by summary
judgment, must bear its burden of proof." (Citation and
punctuation omitted.) Plantation Pipe Line Co. v.
Stonewall Ins. Co., 335 Ga.App. 302 (780 S.E.2d 501)
(2015). Moreover, "the declaration of a homeowner's
association is considered a contract, and we therefore apply
the normal rules of contract construction to determine the
meaning of the terms therein." (Punctuation and footnote
omitted.) Marino v. Clary Lakes Homeowners Assn.,
Inc., 331 Ga.App. 204, 208 (1) (770 S.E.2d 289)
(2015). Viewed in the light most favorable to the
non-moving parties respectively, the record shows the
following undisputed facts.
developer recorded the original declaration of covenants and
restrictions for the Amberfield subdivision in July 1992,
resulting in the creation of Amberfield Homeowners
Association, Inc., a nonprofit corporation. The Amberfield
declaration was submitted to the terms of the Georgia
Property Owners' Association Act, OCGA § 44-3-220 et
The Association filed an amended declaration in August 2011.
to June 2015, membership in a nearby swim and tennis club,
owned and operated by The Fields Swim & Tennis Club,
Inc., was available to the all residents in the Amberfield
community and other communities. Some Amberfield residents
had elected to join the Fields Club and paid club dues, but
the plaintiffs/appellees in this case were not members of the
Fields Club. The boards of the Association and the Fields
Club agreed that the Fields Club needed to increase
membership to be financially viable. This could be
accomplished if members of the Association were required,
rather than merely invited, to join the Fields Club and pay
club membership fees.
March 2015, the Association distributed a ballot to its
members, stating that the Board proposed the adoption of an
amendment to the declaration which, "once adopted by the
members and recorded" in the land records would
"authorize [the Board] . . . to enter into a recorded
Easement and Cost Sharing Agreement with The Fields Swim
& Tennis Club" to "establish[ ] a user
benefit" for the owner of each lot "allowing
continued use and enjoyment of the Basic Club Amenities other
than the Tennis Amenities (the "Basic Membership")
[and to] establish[ ] an obligation of each Owner to pay
periodic Club Fees." The ballot stated that club fees
would be payable by the owners to the Association in the same
manner as assessments under the declaration and would be
payable by the Association to the club.
15, 2015, the president of the Association certified under
oath that the balloting had been conducted according to
Georgia law and the governing documents and that the proposed
amendment had been approved by at least 66 2/3 percent of the
eligible vote, as required. The following day, the
Association recorded an amendment to the declaration
authorizing the Association to enter into the planned
Easement and Cost Sharing Agreement with the Fields
officers of the Association and the Fields Club executed the
Declaration of Easement and Cost Sharing Agreement in
December 2015 and filed it in the real property records. The
Agreement expressly provided that the easement for the use of
the Fields Clubs facilities would run with the land of
homeowners' lots as well as with the Association's
common areas. In the event of a change in the ownership
of a lot, the club membership of the selling owner would
terminate and the membership in the Fields Club would
"automatically transfer to the new Owner."
suit followed in June 2016. Although the Association sought
the June 2015 amendment purportedly to gain the authority to
enter into the Declaration of Easement and Cost Sharing
Agreement with the Fields Club, when the Association moved
for summary judgment, it argued, inter alia, that it had not
been required to amend the declaration in order to enter into
the Agreement and include club fees in members'
appeal, the Association returns to the threshold issue
whether it needed the June 2015 amendment to have the
authority to enter into the Declaration of Easement and Cost
Sharing Agreement and to include Fields Club fees in
members' assessments. Specifically, the Association
contends that the declaration as amended in August 2011
granted it the authority to accept an easement against the
land of another for the common benefit of Amberfield
homeowners, to enter into a contract with another for the
homeowners' common benefit, and to levy assessments for
common expenses and that such authority was consistent with
the provisions of the Georgia Nonprofit Corporations Code and
the Property Owners' Association Act. The Association
contends that the December 2015 Agreement inures to the
common benefit of the homeowners in that, if membership in
the Fields Club had remained voluntary, the entire
subdivision might well have lost access to an amenity package
of the sort commonly expected in suburban subdivisions and,
therefore, stabilizing the Fields Club by mandating
membership would help to maintain the property values of the
parties acknowledge, both the Georgia Nonprofit Corporation
Code and the Georgia Property Owners' Association Act
give very broad powers to homeowners' associations,
subject to the terms of the applicable governing documents.
The Nonprofit Corporations Code provides that, unless the
articles of incorporation provide otherwise, every nonprofit
corporation "has the same powers as an individual to do
all things necessary or convenient to carry out its business
and affairs, " including "[t]o purchase, receive,
lease, or otherwise acquire, own, hold, improve, use, and
otherwise deal with real or personal property or any legal or
equitable interest in ...