For any homeowners association charged with enforcing restrictive covenants, it is worth keeping a close eye on the development of Georgia law in this area, particularly with respect to the statute of limitation.
As the recent case of S-D RIRA, LLC v. Outback Prop. Owners Assn, 330 Ga.App. 442 (2014), demonstrates, although, for now, the law remains relatively favorable to those seeking to enforce covenants restricting land to certain uses, the current state of the law could significantly change the next time this issue comes before the Georgia appellate courts.
The applicable statute of limitation, set forth in O.C.G.A. 9-3-29, is two years. This period begins to run when the right of action accrues, and that accrual occurs immediately upon the violation of the covenant. The point of debate, however, is whether this means that the limitation period begins to run only from an owners first use of the property in violation of a covenant, or whether a separate right of action accrues, and a new limitation period begins, upon each violation of the covenant.
The current rule is that it depends on the type of violation. If it is a violation that constitutes a permanent fixture on the land, then the limitation period runs from the first violation. If, on the other hand, the violation constitutes ongoing conduct, then a new cause of action accrues, and the statute of limitation begins to run, upon each instance of conduct in violation of the covenant.
This rule was articulated in the case of Black Island Homeowners Assn. v. Marra in 2003 (a case involving property owners who sued to prevent an association from mowing undeveloped land), and the rule was then reaffirmed in 2013 in the case of Marino v. Clary Lakes Homeowners Assn. (a case involving an associations effort to enforce a covenant prohibiting the use of garages for regular storage rendering them unavailable for the parking of vehicles). Each of these cases was decided by a three judge panel of the Georgia Court of Appeals.
Last year, in S-D RIRA, the full twelve judge Court of Appeals reconsidered the rule stated in Black Island and Marino, and reached a split decision. Six judges voted in favor of overruling these cases and eliminating the continuing violation theory. Five judges held that Black Island and Marino were correctly decided and should not be overruled. The remaining judge agreed with the conclusion that these cases should not be overruled, but declined to go so far as to say that they were correctly decided.
After the Court of Appeals opinion in S-D RIRA, a petition for certiorari was filed with the Supreme Court of Georgia, however, in another split decision on May 11, 2015, the Supreme Court, on a 4-3 vote, declined to take the case for further review. As a result, despite the strong support demonstrated for overruling the continuing violation rule set forth in Black Island and Marino, this would have had to be accomplished by a decision from either the Supreme Court, or a majority of the Court of Appeals, and since neither of those occurred, Black Island and Marino remain good law, at least for now.
The significant divisions in both the Court of Appeals and the Supreme Court, which could hardly have been any closer, indicate, however, that the enduring viability of the current continuing violation rule may legitimately be in question at some point in the not so distant future. For the time being though, parties seeking to enforce restrictive covenants, where the violation consists of ongoing repetitive acts, will continue to have two years from each instance of such conduct to bring an action to enforce the covenants.