GILBERT et al.
CANTERBURY FARMS, LLC et al. TIME PROPERTIES, LLC
GILBERT et al. CANTERBURY FARMS, LLC
GILBERT et al.
DILLARD, C. J., DOYLE, P. J., and MERCIER, J.
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.
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
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.
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.
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.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.
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.
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."
bench trial, the trial court entered a final order,
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,  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 §
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.
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. 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
(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.
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.
Sweeney v. Landings Assn.,  the Supreme Court of ...