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Pasha v. Battle Creek Homeowners Association, Inc.

Court of Appeals of Georgia, Third Division

June 13, 2019

PASHA
v.
BATTLE CREEK HOMEOWNERS ASSOCIATION, INC.

          DILLARD, C. J., GOBEIL and HODGES, JJ.

          Dillard, Chief Judge.

         Fard Pasha filed suit against the Battle Creek Homeowners Association, Inc. (the "Association"), seeking a declaratory judgment that an amendment to the Association's "Declaration"-which restricted the ability of the neighborhood's homeowners to lease their property-was unenforceable as to him. Both parties moved for summary judgment, and, subsequently, the trial court denied Pasha's motion but ruled in favor of the Association. On appeal, Pasha contends that the trial court erred in granting summary judgment to the Association, arguing that the amendment to the Declaration did not apply to his vested right to lease his property. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to Pasha (i.e., the nonmoving party), [1] the record shows that the Battle Creek subdivision is a property owners' development, as defined under the Georgia Property Owners' Association Act (the "POA Act"), [2]with a governing homeowners' association. In 1999, the Association[3] filed a Declaration of Covenants, Conditions, Restrictions, and Easement for Battle Creek Subdivision with the Clerk of the Superior Court of Cobb County, [4] and, in 2000, it similarly filed an amended Declaration. And although the 2000 Declaration included restrictive covenants, at that time, the Declaration did not restrict the leasing of homes.

         Pasha purchased his home on Rifle Ridge in the Battle Creek subdivision in October 2000 and was aware of the Declaration when he made the purchase. In 2004, Pasha moved out of his home but retained it as an asset, and entered into a 300-month commercial lease agreement with a real-estate company he formed (for which he was the sole officer and member). And over the next decade, Pasha rented his home to a handful of different tenants.

         In 2016, the Association proposed amending the Declaration. And although Pasha voted against the amendment, it passed by a formal vote with more than two-thirds of the homeowners in favor.[5] In contrast to the earlier version, the amended Declaration restricted leasing, specifically providing in Section 5 as follows:

In order to preserve the character of Battle Creek as predominantly owner-occupied and thus protect the value of Lots within the Community, and ensure that Lots qualify for eligibility on the secondary mortgage market, the leasing of lots is prohibited, except as provided in this Section. Leasing of Lots is permitted only on a temporary basis within the following exceptions: (1) a Grandfathered Owner, (2) an Owner who has received a written Hardship Leasing Permit from the Board as provided in this Section; or (3) a Mortgagee who becomes the Owner of a Lot through foreclosure of a Mortgage or Deed in Lieu of Foreclosure of a Mortgage.

         Under Section 5 (a) (ii), the Declaration defined "Grandfathered Owner" to mean

an Owner of a Lot who is lawfully leasing his or her Lot on the Effective Date, and who has provided the Board, within thirty (30) days of the Effective Date, with a copy of the lease in effect on the Effective Date. Any Owner leasing a Lot on the Effective Date who does not provide a copy of the lease shall be in violation of the Declaration.

         This same subsection also provided:

A Grandfathered Owner shall only have the right to lease until the earlier of: (1) the date the Grandfathered Owner conveys title to the Grandfathered Lot to any other person (other than the Owner's Spouse); or (2) the date that all current occupants of the Grandfathered Owner's Lot vacate and cease to occupy the Lot. Further, any assignment, extension, renewal, or modification of any lease agreement in existence on the Effective Date, including, but not limited to, changes in the duration of the lease or the occupants, shall be considered a termination of the lease, and commencement of a new lease, which must comply with this Section.

         Subsequent to the adoption of the amended Declaration, the Association informed Pasha that the new restrictions would take effect on August 1, 2016, and requested copies of any current leasing agreement. But rather than comply with this directive, on February 14, 2017, Pasha filed suit against the Association, specifically seeking a declaratory judgment that the amended Declaration's restriction upon the leasing of property was unenforceable as to him. The Association filed an answer, and discovery ensued. At the conclusion of the discovery period, both parties filed motions for summary judgment. And shortly thereafter, the trial court issued an order denying Pasha's motion and granting summary judgment in favor of the Association. This appeal follows.

         Summary 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."[6] If summary judgment is granted, it enjoys no presumption of correctness on appeal, and an appellate court must satisfy itself that the requirements of OCGA § 9-11-56 (c) have been met.[7] And in conducting this de novo review, we are charged with "viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant."[8] Bearing these guiding principles in mind, we turn now to Pasha's specific claims of error.

         1. Pasha contends that the trial court erred in granting summary judgment to the Association, arguing first that the amendment to the Declaration did not apply to ...


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