Steven D. Anderson v. Tolomato Island Property Owners Association, Inc.

• Court: Court of Appeals of Georgia
• Decided: June 26, 2026
• Docket: A26A0623
• Status: Published

Opinion

FOURTH DIVISION MCFADDEN, P. J., WATKINS and PADGETT, 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

June 26, 2026

In the Court of Appeals of Georgia A26A0623. ANDERSON v. TOLOMATO ISLAND PROPERTY OWNERS ASSOCIATION, INC.

MCFADDEN, Presiding Judge.

This action concerns the rights and obligations imposed by a declaration of

covenants and restrictions (“the Declaration”) in connection with property owner

Steven Anderson’s effort to get approval from the Tolomato Island Property Owners

Association, Inc. (“the Association”) to build a house across two adjacent lots in

McIntosh County that are subject to the Declaration. Anderson, who had obtained a

survey combining the lots that he filed with McIntosh County, sought declaratory

relief in the form of a declaration “that the Declaration does not prohibit approval of

structures across lot lines on the Original Plat once McIntosh County approves

changes in the Original Plat lot lines.” Holding that “the Declaration would not permit construction of a residence” on the combined lot, the trial court granted

summary judgment to the Association and denied summary judgment to Anderson.

As detailed below, the plain language of the Declaration does not prohibit

approval of Anderson’s proposed construction even though the house would cross the

lot lines depicted on the original plat, and Anderson was entitled to a declaration to

that effect. So we reverse the trial court’s order granting summary judgment to the

Association and denying summary judgment to Anderson as to the specific requested

declaratory relief.1

In his complaint, Anderson also sought injunctive relief. Given the trial court’s

ruling on his request for declaratory relief, the trial court did not address Anderson’s

entitlement to injunctive relief and may do so on remand.

1. Facts

“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. A de novo standard of

review applies to an appeal from an order either granting or denying summary

judgment[.]” Smithers v. Tweedy, 375 Ga. App. 877 (917 SE2d 853) (2025). On appeal

1 We take no position on whether construction of the house might be disapproved for other reasons. 2 from an order deciding cross-motions for summary judgment, “we view the evidence

in the light most favorable to the nonmovants.” Omstead v. BPG Inspections, 319 Ga.

512, 513(1) (903 SE2d 7) (2024) (quotation marks omitted).

So viewed, the evidence shows that on April 28, 2023, Anderson bought three

adjacent lots in McIntosh County. The lots were depicted on a recorded plat of the

“Tolomato Island – Phase I – The Thicket” subdivision and were subject to the

Declaration.

The Declaration requires approval from an Architectural Review Board, or

“ARB,” for construction on lots.2 Around the time Anderson bought his lots, a

dispute arose between the Association and the ARB regarding the ARB’s power to

allow owners of adjacent lots, “at the owner’s option,” to construct houses across the

boundary lines of their lots by combining their lots to eliminate side setbacks between

the lots.

The Association construed the Declaration to prohibit the ARB from giving

property owners the ability to combine lots, “at the owner’s option,” citing a

provision in the Declaration requiring the declarant to consent to boundary line

2 There are some exceptions to this requirement that are not relevant to this case. 3 changes. That provision, Article 10.15, states: “Without the Declarant’s prior written

consent, no Lot shall be subdivided or its boundary lines changed after a subdivision plat

depicting the Lot has been approved and filed in the Public Records.” (Emphasis

supplied.)3 A “Lot,” as defined in Article 1.20 of the Declaration, is a portion of the

real property subject to the Declaration, “whether improved or unimproved, which

may be independently owned and conveyed and which is intended for development,

use, and occupancy as a residence for a single family.”

In May 2023, Anderson’s counsel informed the Association’s counsel that he

intended to apply to McIntosh County to have two of his lots replatted as a single lot

and then to seek approval from the ARB to build a house across the original boundary

line between those two lots, and the Association opposed the plan as contrary to the

terms of the Declaration. Anderson went forward with the plan, obtaining a survey

combining the two lots into one (the “combined lot”) and filing it with McIntosh

County. There is no evidence that he sought or obtained written consent from the

declarant before doing so. The county took the position that, assuming other

3 The Declaration defines the “declarant” as Tolomato Partners, LLLP, or its successors or assignees, and “public records” as the official records of the Clerk of McIntosh County. 4 requirements were met, it would be willing to issue a building permit for the combined

lot even if the Association did not approve construction and that “issues” between

Anderson and the Association were “not the [c]ounty’s concern.”

Anderson applied twice to the ARB for approval of his plan to build the house

on the combined lot, across the original lot line. The ARB declined to approve the

plan on the ground that the Declaration did not permit it. In support of this position,

the ARB cited Article 10.15’s requirement that the declarant give written consent to

change boundary lines. During this time, the Association held a vote of membership

on a proposed amendment to the Declaration to allow owners of contiguous lots to

combine the lots to create a single building site, but the amendment did not pass.

On July 16, 2024, Anderson filed the underlying action for declaratory and

injunctive relief. In his claim for declaratory relief, he asserted that uncertainty existed

with regard to his right under the Declaration to build a house on the combined lot,

across the original lot line, and with regard to the Association’s ability to deny

approval of such construction once McIntosh County approved the combined lot. He

asked the trial court to declare “that the Declaration does not prohibit approval of

structures across lot lines on the Original Plat once McIntosh County approves

5 changes in the Original Plat lot lines.” In his claim for injunctive relief, he asked the

trial court to enjoin the Association “from further denials of site plan approval to

[Anderson] on the basis that the location crossing lot lines shown on the Original Plat

is not permitted by the Declaration.”

The parties filed cross-motions for summary judgment. The trial court stated

that Anderson sought a declaration that the Declaration “does not prohibit [the

Association] from approving plans to build a residence on the combined lot.”

Reasoning that “the Declaration, given its plain and ordinary meaning, prohibits the

construction of a residence on two lots as [Anderson] intended[,]” the trial court

granted summary judgment to the Association and denied summary judgment to

Anderson. (Emphasis supplied.)

2. Request for declaratory relief with regard to the Declaration

“The declaration of a homeowners’ association ... is considered a contract, and

we therefore apply the normal rules of contract construction to determine the meaning

of the terms therein.” Pasha v. Battle Creek Homeowners Ass’n, 350 Ga. App. 433,

436(1) (829 SE2d 618) (2019) (quotation marks omitted). If the terms are clear and

unambiguous, we attribute to them their plain meaning. Id. If the terms are

6 ambiguous, we must attempt to discern the parties’ intent from the document as a

whole, construing ambiguities in favor of the property owner. Id. at 436-37(1).

Importantly,

restrictions on private property are generally not favored in Georgia, and generally speaking, an owner of land has the right to use it for any lawful purpose. Consequently, restrictions upon an owner’s use of land must be clearly established, and covenants restricting the use of real property may not be enlarged or extended by judicial construction.

Id. at 437(1) (citation modified). Accord Lake Arrowhead Prop. Owners Ass’n v. Dalton,

257 Ga. App. 655, 656(1) (572 SE2d 25) (2002).

The parties both assert that the language of the Declaration is unambiguous, but

they disagree as to its meaning. Anderson argues that the Declaration does not contain

an express restriction against a property owner building a house across the boundary

lines reflected on the original filed plat. The Association argues that Article 10.15 of

the Declaration prohibits Anderson from changing the boundary lines of his lots to

create the single, combined lot, notwithstanding the treatment of the lots by McIntosh

County. And the Association argues that the Declaration’s definition of “Lot” in

7 Article 1.20 prohibits Anderson from building a house across the boundary line

between the two lots.

We agree that the language of the Declaration is unambiguous and that, as

Anderson contends, that language does not prohibit the building of a house across the

boundary lines reflected in the original plat. As stated above, the plain language of

Article 10.15 prohibits Anderson from changing the boundaries of his lots without the

declarant’s written consent. This unambiguous term must be enforced as written,

Healthy-IT v. Agrawal, 343 Ga. App. 660, 666(2) (808 SE2d 876 (2017), meaning that

for purposes of the Declaration, Anderson’s lots remain separate, notwithstanding

their treatment by McIntosh County. But Article 10.15 contains no restriction against

the construction of a house across a boundary line.

And Article 1.20, which refers to a single family residence in defining the term

“Lot,” does not clearly establish a restriction preventing a property owner from

building a house across two adjacent lots. See Pasha, 350 Ga. App. at 437(1). To the

extent this definitional provision restricts the way in which a property owner can use

a lot, it restricts the construction of more than one single family residence on a single

8 lot. If a house meant for a single family is built across more than one lot, each lot

would still be occupied as a residence for a single family.

So we hold that Anderson is entitled to summary judgment on his claim seeking

a declaration “that the Declaration does not prohibit approval of structures across lot

lines.” (Emphasis supplied.) We therefore reverse the grant of summary judgment to

the Association and the denial of summary judgment to Anderson with regard to that

specific declaration.

3. Request for injunctive relief

The grant of summary judgment to Anderson as to the limited declaration he

seeks does not mean that Anderson is entitled to build his house. In the summary

judgment order, the trial court did not expressly address Anderson’s requested

injunctive relief (an order enjoining the Association from denying him approval to

build on the combined lot on the ground that the Declaration prohibited it). As we

explain above, the Declaration does not prohibit such construction. It does not follow

that the Declaration requires approval of Anderson’s proposed construction plans,

given the significant discretion that the Declaration confers to the ARB in such

matters. There might be other reasons for disapproving Anderson’s construction

9 plans. Anderson’s entitlement to his requested injunction, in light of our ruling that

the Declaration does not prohibit construction across original lot lines, is a matter for

the trial court to consider on remand.

4. Arguments related to Anderson’s filing of a survey depicting the combined lot with

McIntosh County

Finally, Anderson makes two related arguments that he characterizes as

separate enumerations of error in his appellate brief. Anderson asserts that in the

course of ruling, the trial court improperly made a finding of a disputed fact, namely

whether Anderson’s filing of a new plat combining two of his lots “changed the

boundary lines” of those lots as contemplated in Section 10.15 of the Declaration. And

Anderson argues that the trial court exceeded his jurisdiction by ruling that Anderson

violated the Declaration when he filed the new plat with the county, referring to the

trial court’s statement that the creation of the combined lot was not “in accordance

with the Declaration and [the lots] would remain viewed as two individual [l]ots under

the Declaration.”

These arguments are better characterized as individual facets of Anderson’s

attack on the summary judgment rulings, rather than errors of law in and of

10 themselves. See Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999) (“An error of law

has as its basis a specific ruling made by the trial court.”). See generally OCGA § 5-6-

51 (providing examples of wording that identifies legal rulings in enumerations of

error). Because we are reversing the summary judgment rulings for the reasons set

forth above, we need not address the merits of these specific attacks on the rulings.

Judgment reversed and case remanded. Watkins and Padgett, JJ., concur.