Detailed Information About Our Covenants
In 2012 our Community Association Board spent a lot of time researching and discussing the status of our neighborhood covenants. We also consulted with an attorney who is an expert in community association law. We discovered that some of our subdivision covenants have expired. We surveyed homeowners (see the documents above) to find out if a majority wanted to reestablish the covenants for those homes that currently do not have covenants in force. Only 18% of the homeowners voted to re-establish covenants.
The legal issues are complex and we've tried to clarify them as best we can. Huntington Park covenants were recorded in the Office of the Clerk of the Superior Court with the original warranty deed for each home (you can view the original deed for homes in the newer section here). Subsequent warranty deeds do not include covenants, but the original covenants are still binding on subsequent owners.
Based on a 1993 amendment to the Georgia code and a subsequent 2003 Georgia Supreme Court interpretation of that amendment, covenants recorded on or after 7/1/93 automatically renew in perpetuity. However, covenants recorded before 7/1/93 expired after 20 years. That means that covenants for all the 61 homes in the newer section of Huntington Park (shown in orange on this map) will remain in force indefinitely. The covenants for roughly 46 homes in the older section that were built in 1993 or later will also remain in force indefinitely, assuming that covenants were actually included with the original deeds. The covenants for approximately 100 homes in the older section that were built before 1993 have expired.
The full text of the 2003 Georgia Supreme Court decision (Bickford v. Yancey Development Company Inc) ruling is here. This is the key excerpt from the decision:
"We hold that the 1993 revision to OCGA 44-5-60(d)(1), providing for the automatic 20-year renewal of restrictive covenants affecting subdivisions containing 15 or more plots, applies only to those restrictive covenants that are established under law after July 1, 1993. As for all restrictive covenants established before July 1, 1993, they are governed by OCGA 44-5-60(b), and thus are deemed unenforceable after a period of 20 years. In this appeal, the restrictive covenant at issue was established in 1977, expired in 1997, and is no longer enforceable against any property owner in the subdivision, regardless of when the owner purchased his or her lot."
The sequence of events that led up to this ruling is a little confusing, but this is basically what happened:
Prior to 1993 section 44-5-60(b) of the Georgia code provided that subdivision covenants expire after twenty years. This section remains unchanged in the code.
However, in 1993 the code was amended to add section 44-5-60(d)(1), which provided that covenants recorded prior to 1993 would be automatically renewed if the subdivision has at least 15 plots.
In 2003 the court ruled that section 44-5-60(d)(1) does not apply to any covenants recorded prior to 7/1/93. The court ruled that all such covenants are still governed by section 44-5-60(b), which says that covenants expire after twenty years.
The full text of OCGA Section 44-5-60 is below:
O.C.G.A. § 44-5-60 (2011) Covenants running with land; effect of zoning laws; covenants and scenic easements for use of public; renewal of certain covenants; costs
(a) The purchaser of lands obtains with the title, whether conveyed to him at public or private sale, all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.
(b) Notwithstanding subsection (a) of this Code section, covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted.
(c) The limitation provided in subsection (b) of this Code section shall not apply with respect to any covenant or scenic easement in favor of or for the benefit of the United States or any department, bureau, or agency thereof; this state or any political subdivision thereof; or any corporation, trust, or other organization holding land for the use of the public, but only with respect to such covenants and scenic easements running in favor of or for the benefit of the land so held for the use of the public. Such covenants and scenic easements shall run in perpetuity.
(d) Notwithstanding the limitation provided in subsection (b) of this Code section, covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the period provided for in subsection (b) of this Code section unless terminated as provided in this subsection. Each such renewal shall be for an additional 20 year period, and there shall be no limit on the number of times such covenants shall be renewed
To terminate a covenant as provided in paragraph (1) of this subsection, at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated, which may be incorporated by reference to another recorded document. By signing such document, each such person shall verify that he or she is a record owner of property affected by the covenant. Such document shall be recorded in the office of the clerk of the superior court of the county where the land is located no sooner than but within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document.
No covenant that prohibits the use or ownership of property within the subdivision may discriminate based on race, creed, color, age, sex, or national origin.
Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.
(e) To the extent provided in the covenants, the obligation for the payment of assessments and fees arising from covenants shall include the costs of collection, including reasonable attorney's fees actually incurred.
How to Find Out Whether Your Home is Covered by Covenants
If your home is not shown in orange on the map, you may or may not have covenants depending on when your original warranty deed was recorded in the courthouse and depending on whether there were any covenants recorded with that deed. (Check this document to see when your home was built.) It is likely that most of the homes in the older section originally had these covenants, but the only way to know for sure is to look at the original warranty deeds.
If the original warranty deed for your home was recorded on or after 7/1/93 and if covenants were included as a part of the deed, then the covenants will renew in perpetuity. If the deed was recorded before 7/1/93 and covenants were included as a part of the warranty deed, then the covenants have expired.
If you do not have the original warranty deed (as opposed to subsequent deeds), you must go to the Office of the Clerk of Superior Court at the courthouse if you want to check the covenants for your home. First go to this tax record website to find the original owner of your home. Follow the steps below:
Click on OK.
Click on the Search Records link.
Enter your street address.
Scroll down to Sale Information to locate the original owner.
Then ask someone in the Clerk's office to help you find the deed for that original owner.
Limited Enforceability and Scope of Our Covenants
The enforceability of the existing Huntington Park covenants is very limited. The covenants do not include any provision for enforcement. Since the covenants do not specify procedures the board can follow when there are violations (for example, fines and liens), the board would have to take violators to court. However, suing violators would be impractical for us since we don't have the funds to pay legal fees. And because we don't have mandatory dues, if we send out warning letters to violators, we would risk alienating homeowners and losing their financial support.
The scope of our covenants is also very limited. The board has reviewed our covenants and searched the county code to check the overlap between the covenants and the code. We have also talked with a couple of the planners at the County Planning Department to get more information. We have concluded that the following two covenant provisions are the only ones that would provide any significant protection if they were enforceable. The rest either are rarely violated, are already covered by county code, are too vague, or apply only to new home construction.
Outbuildings must be 10 feet from interior lot lines (the county code requires a three-foot setback).
Swimming pools cannot have bubble covers and must be below ground.
The following provisions would probably occur too rarely to worry about:
Above-ground storage tanks are prohibited.
Garages cannot face the street and can be no larger than would be needed to accommodate three cars.
Clothes lines must be behind the house.
Trapping of animals is prohibited.
The following provisions are already covered by county code:
Structures are limited to a house, garage, and outbuildings
Outbuildings and pools must be set back 50 feet from the street and 40 feet from a side street.
Outbuildings cannot be lived in.
An outbuilding must be a type of building that is customarily used with a single family dwelling (the home business requirements and the square footage requirements in the code would most likely prohibit any undesirable outbuilding).
Pools must be surrounded by a fence.
No satellite dishes are allowed in the front yard.
Third story additions are not allowed on the street side (the code states that homes can be no higher than 30 feet)
Plantings, fences and walls cannot obstruct sight lines at intersections.
Animals, livestock, and poultry of all kinds are prohibited, except for pets. Animals may not be kept or bred for commercial purposes. (Breeding of any animals and keeping of livestock is prohibited by the code.)
No lots may be used for dumping rubbish, trash, garbage, or waste.
The discharge of firearms is prohibited.
Hunting of animals is prohibited.
Offensive activity is not allowed (covered under the disorderly conduct ordinance).
The following provisions are either too vague to enforce or apply primarily to new home construction:
Fences and walls must conform architecturally to the home (too vague)
House distance from street and lot lines (applies primarily to new home construction)
Combining lots (applies primarily to new home construction)
Square footage requirements (applies primarily to new home construction)
County ordinances include many additional protections not addressed in the covenants (a summary of ordinances affecting our neighborhood can be found here). One big advantage of the county ordinances is that the county is responsible for enforcement.
Although our covenants do offer some limited benefits, county ordinances provide much more comprehensive protections.
FREQUENTLY ASKED QUESTIONS ABOUT THE COVENANTS AND THE HOMEOWNER SURVEY
As we explained in the survey results letter, we did not get enough positive responses to justify attempting to reestablish covenants in the older section of Huntington Park at this time. The FAQs below are still included to help explain the issues involved.
Why can't homeowners just have a majority vote to amend or reestablish covenants which would then be binding on every homeowner in the neighborhood? Our covenants don't have a provision for amendments. Therefore, any amended or new covenants would only be binding on homeowners who sign a consent letter. The board has sent out a preliminary survey to find out if there is sufficient interest in establishing covenants for homes that don't currently have them. The outcome of the survey is not binding on Huntington Park homeowners. The only purpose of the survey is to help the board decide whether send out consent letters.
Why do you need a large majority to vote to reestablish covenants before you will send out consent letters to affected homeowners? The effectiveness of covenants is limited unless a high percentage of homeowners consent to be covered by them. We could also lose membership in the association if some homeowners mistakenly assume that opting out of the covenants also means opting out of the association (see the next question).
If my home is not covered by covenants, can I still be a member of the association? Definitely. There is no connection between the covenants and membership in our community association. Membership and dues are governed by the association bylaws, not the covenants. Member dues go mainly towards the upkeep of the front entrance, and this obligation is not changed in any way by whether or not you have covenants.
If you do get a large majority who indicate on the survey that they would prefer covenants, what happens next? We would send a consent letter to each homeowner who currently does not have covenants. The homeowner would have the option to sign the letter and send it back to us. We would then record the letters at the courthouse. The covenants would be binding on all homeowners who consented and any future owners of those homes.
If a homeowner does not initially sign a consent letter, could that homeowner or a new owner consent to the covenants at any future time? Yes.
If you establish new or amended covenants, why not strengthen the covenants and/or make the association fee mandatory? Legally, we could do this. But the attorney we consulted said that it would not be practical because we probably couldn't get enough people to consent to it, especially since we don't have any amenities. She recommended that any new covenants be similar to the old ones.
If my home isn't covered by covenants, won't that hurt my property value? Our covenants do not offer much protection. They lack a practical enforcement mechanism and are very limited in scope. County ordinances address almost all areas covered by our neighborhood covenants, and they include many additional protections not addressed in the covenants.
Who is the attorney you consulted about the covenants? Julie Howard, one of the leading experts on community association law in the state. She is a partner with Weissman, Nowack, Curry & Wilco, a law firm in Atlanta, which is nationally recognized for its extensive real estate, community association and litigation practices.