Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gilbert v. Canterbury Farms, LLC

Court of Appeals of Georgia, Fourth Division

June 20, 2018

GILBERT et al.
v.
CANTERBURY FARMS, LLC et al. TIME PROPERTIES, LLC
v.
GILBERT et al. CANTERBURY FARMS, LLC
v.
GILBERT et al.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          Doyle, Presiding Judge.

         Richard Gilbert, Fred Lovell, Jr., and Aaron Smith (collectively, "the plaintiffs") are property owners within a subdivision in Columbia County known as "Old Farm." After Canterbury Farms, LLC, bought a parcel of land ("the Property") within Old Farm, the plaintiffs sued Canterbury Farms, alleging that it was violating certain Old Farm protective covenants regarding clearing and planned construction on the Property. Canterbury Farms filed counterclaims and a third-party complaint against all owners in the Old Farm subdivision, including Time Properties, LLC. Following a bench trial, the trial court entered a final order finding that although the Old Farm protective covenants are valid under OCGA § 44-5-60, they are invalid as applied to Canterbury Farms because the plaintiffs' delay in bringing the action severely prejudiced Canterbury Farms. In Case No. A18A0241, the plaintiffs appeal, arguing that trial court erred by concluding that the protective covenants are invalid as to Canterbury Farms and by denying their requests for attorney fees and expenses under OCGA § 13-6-11 and for injunctive relief. In Case No. A18A0242, Time Properties appeals, arguing that the trial court erred by determining that the protective covenants are valid. Canterbury Farms cross-appeals in Case No. A18A0243, arguing that the trial court erred by determining that the protective covenants are valid and could renew. We have consolidated these appeals for review. For the reasons that follow, we affirm in Case Nos. A18A0242 and A18A0243; in Case No. A18A0241, we reverse in part, vacate in part, and remand.

         "[When] reviewing a judgment entered in a bench trial, we construe the evidence in favor of the judgment[, ] and the court's factual findings will not be disturbed when supported by any evidence. We owe no deference, however, to the court's legal analysis[, ] which is subject to de novo review."[1]

         The undisputed facts show that the plaintiffs are property owners and members of the governing body of Old Farm. Old Farm covers approximately 127 acres, consisting of fewer than 15 large residential lots, which average approximately 10 acres each. The neighborhood is heavily wooded, includes ponds, streams, and horses, and is accessed by a private dirt road.

         On May 17, 1990, protective covenants were executed and filed with the Columbia County Superior Court Clerk, which covenants applied to and ran with all real property contained within Old Farm. The covenants prohibit, without prior approval by the Old Farm Control Committee, cutting of trees more than three inches in diameter at one foot above ground and the subdivision of any tract such "that the total area is reduced by more than . . . 1/20th . . . of its original size." Paragraph 15 of the protective covenants provides that the covenants are binding upon all successors in title for an initial period of 20 years and "will automatically be renewed for successive 10[-]year periods unless abolished or amended as provided in paragraph 10 hereinbefore." Paragraph 10 prohibits the cutting of trees. Paragraph 14, however, provides: "These covenants may be amended in whole or part by a written document signed by the owners of at least two-thirds (2/3) of the subdivided tracts . . . and recorded in the Columbia County Clerk's Office." It is undisputed that the protective covenants have not been abolished or amended.

         Adjacent to Old Farm is Canterbury Farms, a much newer neighborhood consisting of high-volume, high-density housing, including townhouses. On May 15, 2015, Canterbury Farms purchased the Property, a ten-acre tract, from Old Farm with the intention of developing it as an extension of the Canterbury Farms neighborhood. The warranty deed states that the Property was "subject to" the protective covenants.[2]Canterbury Farms intended to construct buildings, fences, walls, and/or other structures on the Property and planned to subdivide it into multiple tracts without prior approval of the Old Farm Control Committee. Prior to suit, Canterbury Farms cut trees on the Property, and it intended to cut additional trees with a diameter greater than three inches, also without approval.

         On January 22, 2016, the plaintiffs filed suit against Canterbury Farms, seeking: a declaratory judgment that the Old Farm protective covenants were valid and enforceable, had renewed, and precluded Canterbury Farm's planned development of the Property; permanent injunctive relief; damages; and attorney fees and expenses of litigation pursuant to OCGA § 13-6-11. Canterbury Farms filed an answer and asserted counterclaims and a third-party complaint against all owners in the Old Farm subdivision, including Time Properties, seeking a declaratory judgment invalidating the protective covenants and attorney fees.[3]

         During litigation, the parties entered into multiple stipulations, including that "[t]he 1990 version of OCGA § 44-5-60 [] effective March 28, 1990[, ] was in effect when the [p]rotective [c]ovenants were recorded[, and] . . . is the applicable statute to the [p]rotective [c]ovenants at issue." They further stipulated that Old Farm "has never followed the procedures for renewal of protective covenants as set forth in the 1990 version of OCGA § 44-5-60, " and "Old Farm has never taken any action to abolish or amend the [p]rotective [c]ovenants." Finally, the parties stipulated that "Columbia County adopted zoning laws in or about 1979."

         After a bench trial, the trial court entered a final order, concluding that

while the Declaration of Protective Covenants for the Old Farm Neighborhood filed May 17, 1990[, ] with the Clerk of Superior Court of Columbia County are valid under OCGA § 44-5-60 as interpreted by Turtle Cove Property Owners Assn. v. Jasper County, [4] such protective covenants are invalid as applied to Defendants Canterbury Farms, LLC[, ] and Columbia County. . . . Plaintiffs' delay in bringing this action, while Defendants obtained permits, erected fencing, graded sections of the property, and cleared the ten-acre property of trees, would result in severe prejudice to Defendants, who relied on the belief that such protective covenants were no longer valid by operation of OCGA § 44-5-60.

         These appeals followed.

         Case No. A18A2042

         1. Canterbury Farms contends that the trial court's finding that the Old Farm protective covenants could automatically renew violates OCGA § 44-5-60 (1990), which it argues prohibits automatic renewal of such covenants in subdivisions containing fewer than 15 lots ("small subdivisions"). We disagree.

         Former OCGA § 29-301 (now substantially OCGA § 44-5-60 (b)) provided that covenants restricting lands could run only for 20 years in municipalities and counties where zoning ordinances had been enacted.[5] In 1990, OCGA § 44-5-60 was amended to add subsection (d), which provided:

(1) Notwithstanding the limitation provided in subsection (b) of this Code section, covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots may be continued beyond 20 years as provided in this subsection. Each such continuation shall continue for 20 years, and there shall be no limit on the number of times such covenants may be continued.
(2) To continue a covenant as provided in paragraph (1) of this subsection, at least two-thirds of the record owners of plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be continued, which may be incorporated by reference to another recorded document. Such document, together with the affidavit of an attorney licensed to practice in this state stating that he has searched the land records and has verified the names of the record owners appearing in the document, shall be recorded in the office of the clerk of the superior court of the county where the land is located prior to the expiration of the initial 20 year period or any subsequent 20 year extension. No such covenant shall be renewed after the lapse of time of such initial period or extension. The clerk of the superior court shall index the document under the name of each record owner appearing in the document.
(3) No covenant that prohibits the use or ownership of property within the subdivision may discriminate based on race, creed, color, age, sex, or national origin.
(4) Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.[6]

         Canterbury Farms argues that by adding subsection (d) to the 1990 version of OCGA § 44-5-60, which the parties agree is applicable to this case, the legislature prohibited the automatic renewal of protective covenants in "small subdivisions" in those counties and municipalities with zoning laws, instead permitting automatic renewal only in "large subdivisions" - those with 15 lots or more - for which relevant documents have been executed and recorded in the method required by OCGA § 44-5-60 (d) (2). Pretermitting whether this distinction is a proper interpretation of that Code section, OCGA § 44-5-60 (1990) does not render unenforceable the Old Farm covenants at issue in this case.

         In Sweeney v. Landings Assn., [7] the Supreme Court of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.