Saunders v. Thorn Woode Partnership, L.P.

462 S.E.2d 135, 265 Ga. 703

• Court: Supreme Court of Georgia
• Decided: October 2, 1995
• Docket: S95A0644
• Status: Published

Opinions

Benham, Chief Justice.

Appellants are homeowners in the Thorn Woode subdivision of DeKalb County. They filed suit against Thorn Woode Partnership (hereinafter “Thorn Woode”), a limited partnership, and its general partners, alleging that Thorn Woode had built 41 units in the subdivision in violation of the covenants set forth in the recorded “Declaration of Protective Covenants and Restrictions.” When the trial court granted summary judgment in favor of appellees, this appeal followed.

Sections 2.01 and 2.02 of the declaration of covenants state

[n]o improvements shall be erected or placed on any Lot within the Property . . . until a site plan together with construction plans and specifications . . . have been submitted to and approved in writing by [the homeowners’ association] with respect to (a) conformity and harmony of external design with existing or other proposed structures upon the Property. . . . The approval of said plans and specifications shall be at the sole discretion of the [homeowners’ association], however [the association] shall not unreasonably withhold approval of any such . . . plans. ...

The declaration of covenants also provided that the owner of each lot within the subdivision had one delegate/vote in the homeowners’ association, and that a person or entity owning more than one lot had one delegate/vote in the association for each lot owned.

It is undisputed that Thorn Woode violated the restrictive covenant by building the 41 units without submitting its construction plans to the homeowners’ association and receiving written approval that the external design of the planned structures conformed with and was in harmony with the 24 pre-existing townhomes. Concluding that Thorn Woode’s failure to submit its plans before construction meant that the issue could not now be decided as a matter of law, the trial court ordered Thorn Woode to submit the issue of design conformance to the homeowners’ association after the fact. See Prime Bank v. Galler, 263 Ga. 286 (430 SE2d 735) (1993) (trial court should find “the least oppressive means of remedying the violation”). At a March 1994 meeting of the association, it was determined by a vote of 41-23 that the design of the 41 units was in conformity with the design of the 24 units previously existing. Recognizing that Thorn Woode had violated the covenants by failing to seek and obtain pre-construction approval of its plans, but that the homeowners’ association had now approved the design of the new units, the trial court determined that appellants had achieved the only relief to which they were entitled — submission of plans to, and approval as to design conformance by, the homeowners’ association. That being so, the trial court concluded that appellees were entitled to summary judgment.

1. Appellants maintain that the trial court’s reliance on the post-construction association approval was improper. We disagree. Acting as a chancellor in equity, the trial court did not abuse its discretion when it carefully considered “the conveniences of the parties” and fashioned “the least oppressive means of remedying the violation.” Prime Bank v. Galler, supra, Division 4.

2. Appellants complain that summary judgment should not have been entered because there exists a jury question on the issue of whether the design of the 41 units was in conformity with the previously built units. By making such an assertion, appellants suggest, in effect, that the association vote on the issue of design conformity is of no consequence and that they are entitled to de novo resolution of the issue by the judicial system. Again, we must disagree. Appellants’ right to question design conformity stems solely from the “Declaration of Protective Covenants and Restrictions.” But for the declaration, appellants would not have the authority to take issue with the design of any residence in the subdivision, since “[i]t is the general rule that the owner of land has the right to use it for any lawful purpose. . . .” Corp. of the Presiding Bishop &c. v. Statham, 243 Ga. 448, 449 (254 SE2d 833) (1979). See also Law v. Lowe, 191 Ga. App. 434, 435 (382 SE2d 118) (1989). Where, as here, the declaration delegates decision-making authority to a group and that group acts, the only judicial issues are whether the exercise of that authority was procedurally fair and reasonable, and whether the substantive decision was made in good faith, and is reasonable and not arbitrary and capricious. See Winslette v. Keeler, 220 Ga. 100 (2) (137 SE2d 288) (1964). See also Hyatt, Condominium and Homeowner Association Practice: Community Association Law, § 3.02 (2d ed.) (1988); Palmetto Dunes Resort v. Brown, 336 SE2d 15, 19 (S.C. App. 1985). Appellants did not voice allegations of improper procedure or decisions made arbitrarily, capriciously or in bad faith. Since the homeowners’ association, vested with the discretion given it by the declaration, resolved the issue of design conformity against appellants, there is no factual issue concerning the conformity of the new units for resolution by a jury, and the trial court did not err in entering summary judgment in favor of the developer of the new units.

3. Lastly, appellants assert that the trial court should order the modification or destruction of buildings found by a jury to be nonconforming. As there has been no finding of non-conformity, appellants’ proposed remedy is premature and not properly before this court.

Judgment affirmed.

All the Justices concur, except Sears, J., who dissents.