GREGORY VAUGHN v. WINDFIELD HOMEOWNERS ASSOCIATION, INC.

• Court: Court of Appeals of Georgia
• Decided: February 21, 2025
• Docket: A24A1751
• Status: Published

Opinion

SECOND DIVISION MARKLE, J., LAND and DAVIS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

February 21, 2025

In the Court of Appeals of Georgia A24A1751. VAUGHN et al. v. WINDFIELD HOMEOWNERS ASSOCIATION, INC.

MARKLE, Judge.

Homeowners Gregory and Jodie Vaughn appeal from the trial court’s denial of

their motion for summary judgment and the grant of summary judgment to the

Windfield Homeowners Association in this dispute over amendments to the

neighborhood covenants that prevent them from using their home as a short-term

rental property. For the reasons that follow, we conclude the amendments were

properly enacted and the Vaughns were subject to the restrictions. Accordingly, we

affirm.

“Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable

to the nonmovant.” (Citation omitted.) Salter v. St. Charles Homeowners Assn., 368

Ga. App. 504, 506 (890 SE2d 391) (2023). And, “[i]n Georgia, a trial court’s findings

of fact after a declaratory-judgment hearing are analogous to a jury verdict and will not

be interfered with if there is any evidence to support them. But we review the trial

court’s conclusions of law de novo.” (Citations and punctuation omitted.) Moye v.

NorthHaven Homeowners Assn., 370 Ga. App. 544, 545-546 (897 SE2d 604) (2024).

So viewed, the record shows that, in 1987, the developer of the land comprising

the Windfield subdivision recorded a Declaration of Protective Covenants (“the 1987

declaration”), setting out the use of the land, imposing certain limits not relevant

here, and creating an architectural committee.1 The covenants were to run for 20

years, with automatic renewals thereafter “unless an instrument signed by a majority

of the then owners of the lots has been recorded, agreeing to change said covenants

in whole or in part.” Sometime over the next few years, the property owners

1 Although the Vaughns argue that the 1987 declaration did not impose any leasing restrictions, the document did prohibit any conduct that could be deemed a nuisance. 2 organized an owners’ association, elected a board, opened bank accounts, imposed

and collected assessments, and managed the common areas.

In 2023, the Vaughns purchased one of the lots in the Windfield subdivision.

It is undisputed that the Vaughns paid assessments on the property as directed by the

existing owners’ association. The seller’s disclosure and the Vaughns’ closing

documents listed the association as mandatory and the closing documents also

included a rider that required compliance with the obligations imposed by any

homeowners’ association or covenants.2 Following the purchase, the Vaughns began

to use the home as a short-term rental.

Thereafter, the Windfield property owners sought to amend the 1987

declaration; create and incorporate a mandatory property owners’ association (“the

Association”), and adopt the Property Owners’ Association Act (“the Act”);3 and

impose restrictive covenants that banned short-term rentals. The Vaughns did not

consent to any of these actions, but a two-thirds majority of the property owners voted

in favor of amending the 1987 declaration to create a mandatory homeowners’

2 The parties dispute whether the association was, in fact, mandatory. 3 See OCGA § 44-3-220 et seq. 3 association, incorporate the Association, and adopt the Act. The Association then

filed its articles of incorporation and immediately recorded a restrictive covenant

entitled First Amendment to the 1987 Declaration (“the Amendment”), which barred

short-term rentals.

The Vaughns filed suit against the Association, seeking a declaratory judgment

that the Amendment was invalid. Both the Vaughns and the Association moved for

summary judgment, and, following a hearing, the trial court granted the Association’s

motion and denied the Vaughns’ motion.4 The trial court found that only a majority

vote was required to amend the 1987 declaration, membership in the newly formed

Association could be implied, and the Association substantially complied with the

Act’s requirements. Accordingly, the trial court found the Vaughns were subject to

the new restrictive covenants. The Vaughns now appeal.

In related enumerations of error, the Vaughns argue that the Association could

not impose new restrictions on the use of their property without their consent unless

the Association was subject to the Act, which it was not because: (1) the 1987

declaration did not satisfy the statutory definition of a “declaration”; (2) the

4 There is no transcript of the hearing in the record. 4 Association was not properly incorporated; and (3) there could be no implied consent

to membership in the Association nor any implied covenant. The Vaughns contend

that the cases on which the trial court relied, Ochoa v. Coldwater Creek Homeowners

Assn., 361 Ga. App. 267 (863 SE2d 730) (2021), and Rice v. Lost Mountain Homeowners

Assn., 269 Ga. App. 351 (604 SE2d 215)(2004), do not control the outcome of their

case. Finally, the Vaughns further assert that the trial court must make specific

findings to determine that the Association substantially complied with the Act, and

that the trial court improperly disregarded evidence to reach its conclusion.5

“[T]he general rule is that the owner of land has the right to use it for any

lawful purpose[,]” and any restrictions on that right cannot be imposed without the

owner’s consent. (Citation and punctuation omitted.) Charter Club on River Home

Owners Assn. v. Walker, 301 Ga. App. 898, 899 (689 SE2d 344) (2009); OCGA § 44-5-

60 (d) (4) (2017). However, there is an exception to this rule when a homeowners

association is “created pursuant to or submitted to” the Act. OCGA § 44-3-234.

5 The Vaughns complain that the trial court disregarded testimony that the original owner’s association was not mandatory. Given our conclusion, infra, that the property owners substantially complied with the requirements to amend the 1987 declaration, and to create and incorporate a mandatory homeowner’s association, this dispute does not change the outcome. 5 There is no dispute that the Vaughns did not consent to the amended covenants.

Thus, the Association must show that the Act applied in order to impose new

restrictive covenants. OCGA § 44-3-234.

The resolution of that question requires that we engage in statutory

interpretation. When we interpret statutory language, we

presume that the General Assembly meant what it said and said what it meant. And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage.

(Citations, punctuation, and footnotes omitted.) Monumedia II, LLC v. Dept. of

Transp., 343 Ga. App. 49, 51–52 (1) (806 SE2d 215) (2017). “[A] statute must be

construed in relation to other statutes of which it is a part, and all statutes relating to

the same subject-matter, briefly called statutes in pari materia, are construed together,

and harmonized whenever possible, so as to ascertain the legislative intendment and

give effect thereto.” (Citation and punctuation omitted.) Aimwell, Inc. v. McLendon

Enterprises, 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012); see also State v. Cook, 317

Ga. 659, 660 (1) (893 SE2d 670) (2023) (“For context, we may look to other

6 provisions of the same statute, the structure and history of the whole statute, and the

other law — constitutional, statutory, and common law alike — that forms the legal

background of the statutory provision in question.”) (citation and punctuation

omitted).

Here, the relevant statutes provide that the Act applies to

all property which is submitted to this article. This article shall also apply to any association of owners subject to a recorded declaration of covenants upon property, which covenants are administered by an owners’ association in which membership is mandatory for all owners of lots in the development, which declaration is amended in accordance with Code Section 44-3-222 in order to submit the property owners’ association to this article[.]

OCGA § 44-3-235 (a).

Section 44-3-222 provides,

A property owners’ development shall come into existence upon either the recordation of the declaration pursuant to this article or the amendment of a recorded declaration in accordance with Code Section 44-3-235. Any declaration or amendment intending to bring or avail a development of the benefits and provisions of this article shall state an affirmative election to be so governed. Any original declaration shall be duly executed by or on behalf of all of the owners of the submitted property. Any such amendment to an existing declaration shall be

7 executed in accordance with the terms of the recorded declaration being amended thereby.

Our legislature has further instructed that we are to liberally construe the

statutory requirements when determining whether an association has been established

properly. Marino v. Clary Lakes Homeowners Assn., 322 Ga. App. 839, 845 (2) (747

SE2d 31) (2013), overruled in part on other grounds by S-D RIRA, LLC v. Outback

Property Owners’ Assn., 330 Ga. App. 442, 460 (5) (765 SE2d 498) (2014); see also

Howell v. Lochwolde Homeowners Assn., 355 Ga. App. 678, 681 (1) (b) (845 SE2d 410)

(2020); OCGA § 44-3-233. Moreover, substantial compliance with the requirements

is sufficient. OCGA § 44-3-233.

The statutes focus on the existence of a declaration as the starting point for

submission to the Act. “Declaration” is a term of art, and is defined as “the

recordable instrument creating covenants upon property which covenants are

administered by a property owners’ association in which membership is mandatory

for all owners of lots in the property owners’ development.” OCGA § 44-3-221 (6).

The 1987 declaration did not constitute a “declaration” under the Act because

it was not administered by an association with mandatory membership. OCGA § 44-3-

8 221 (6). But, importantly, the 1987 declaration set out the means to amend the

document by a majority vote.6 In this case, two-thirds of the property owners voted

to amend the 1987 declaration to form a mandatory homeowners’ association and to

be governed by the Act. See OCGA § 44-3-226 (a) (1) (requiring two-thirds vote to

amend an instrument); § 44-3-221 (17) (defining “instrument” to include

declarations); OCGA § 44-3-221 (18) (“‘Property owners’ development’ or

‘development’ means real property which contains lots and which may contain

common area located within Georgia and subject to a declaration and submitted to this

article.”); see also Ochoa v. Coldwater Creek Homeowners’ Assn., 361 Ga. App. 267, 272

(2) (863 SE2d 730) (2021) (noting that two-thirds majority approval was sufficient to

amend the covenants and adopt the Act, and consent of all owners was not required);

Marino, 322 Ga. App. at 846-848 (2) (holding that amendment to declaration to adopt

Act and impose restrictive covenant must be approved by two-thirds of the owners).

And the Amendment was promptly recorded. OCGA §§ 44-3-222; 44-3-235 (a). The

Amendment is a “declaration” as that term is defined in the Act.

6 The 1987 declaration, like other covenants, is a contract, and we apply our usual rules of contract interpretation when we consider its terms. Pasha v. Battle Creek Homeowners Assn., 350 Ga. App. 433, 437 (1) (829 SE2d 618) (2019). Here the plain language of the declaration provided that it could be amended by a majority vote. 9 We thus conclude that the Windfield property owners properly amended the

1987 declaration to create a mandatory association, which then enabled the

Association to submit to the Act. This outcome is consistent with the Act’s provision

to liberally construe its requirements and that “any defects in [the declaration] or want

of conformity with this article may be cured by an amendment thereto duly executed

by the association and recorded[.]” OCGA § 44-3-233. That is exactly what has

occurred here.

We are unpersuaded by the Vaughns’ argument that the 1987 declaration could

not be amended to adopt the Act because the relevant statutes only apply to an

amendment of a “declaration” as that term is defined in the Act. The homeowners

here amended the 1987 declaration to create a homeowners association with

mandatory membership, they recorded that declaration, and they indicated in that

declaration that they adopted the Act. OCGA §§ 44-3-222; 44-3-235 (a). To adopt the

Vaughns’ interpretation of these statutes would lead to the nonsensical result that no

homeowners association could avail itself of the Act if its original declaration of

covenants did not satisfy the statutory definition of “declaration,” regardless of any

10 attempt to amend the document. Moreover, the Vaughns’ interpretation ignores the

statutory mandate that

[s]ubstantial compliance with the requirements of this article for the establishment of a property owners’ association shall suffice to being property described in an instrument recorded pursuant to this article within the purview and application of this article; and any defects in such instrument or want of conformity with this article may be cured by an amendment thereto duly executed by the association and recorded[.]

OCGA § 44-3-233.

We further conclude that the Association was properly formed as a nonprofit

corporation, as required by the Act. See OCGA § 44-3-227 (a) (“Prior to submission

to this article, the association shall be duly incorporated either as a business

corporation under Chapter 2 of Title 14 or as a nonprofit membership corporation

under Chapter 3 of Title 14, as amended.”); see also Howell, 355 Ga. App. at 680 (1)

(b). OCGA § 14-3-601 (b), which applies to nonprofit corporations, provides that

“[n]o person shall be admitted as a member [of a nonprofit corporation] without his

or her consent.” That consent can be express or implied. See OCGA § 14-3-601,

comment.

11 Here, the record reflects that the Vaughns’ deed, closing documents, and the

seller’s disclosure alerted them to the existence of a owners association and certain

restrictive covenants applicable to the community. And the Vaughns acted in

conformity with the existence of, and their membership in, the original association

when they paid the assessments.7 Thus, they impliedly consented to be a member of

the original association, and they were bound when the association amended the 1987

declaration to form a mandatory association and incorporate under the Act.8 Cf. Sager

v. Ivy Falls Plantation Homeowners’ Assn., 339 Ga. App. 111, 115-116 (793 SE2d 455)

(noting that newly formed corporation, approved by majority of members of original

corporation, was liable for debts of former corporation as it was merely a continuation

of original corporation); see also OCGA § 44-3-226 (e) (approval to amend the

declaration can be implied where the owner fails to respond to the proposed

amendment).

7 The Vaughns take issue with this evidence because the seller’s disclosure, indicating the association was mandatory, is inadmissible hearsay. But that evidence is not being used to show that there was, in fact, a mandatory association, but rather that the Vaughns were on notice of, and participating in, the existing association. 8 The Association argues that the theory of implied covenants can bind the Vaughns under the facts of this case. Given our conclusion above, we need not consider whether this theory would be applicable here. 12 In sum, the Association amended the 1987 declaration to conform with the

Act’s requirements, and substantially complied with the Act at the time of

incorporation. Because we must liberally construe those statutory requirements with

the presumption in favor of a valid amendment, we conclude that the Association was

properly formed and the Amendment properly enacted such that the Vaughns are

subject to the new restrictions. OCGA § 44-3-233; Howell, 355 Ga. App. at 681 (1) (b);

Marino, 322 Ga. App. at 845 (2).9 Accordingly, the Association was entitled to

summary judgment, and we affirm.

Judgment affirmed. Land and Davis, JJ., concur.

9 Notably, the record does not reflect that the Vaughns requested findings of fact and conclusions of law. Nevertheless, a reading of the trial court’s order shows that the trial court made the necessary findings. It set out the relevant law, reviewed the applicable facts, and found the Association substantially complied with the Act’s requirements. Compare Howell, 355 Ga. App. at 682 (1) (b) (trial court did not make necessary findings where it stated only that the association’s actions were “reasonable.”). 13