O.C.G.A. § 44-5-39 (2019)

Annotations

Law reviews. - For article, ‘‘Condominium and Home Owner Associations: Formation and Development,’’ see 24 Emory L.J. 977 (1975). For article surveying recent leg-

islative and judicial developments in Georgia’s real property laws, see 31 Mercer L. Rev. 187 (1979). For comment on Phillips v. Naff, 332 Mich. 389, 52 N.W.2d 158 (1952), see 15 Ga. B.J. 71 (1952).

JUDICIAL DECISIONS Owner may sell land subject to reservations or restrictions for benefit of adjoining owned property. - Owner of a fee has the right to sell the owner’s land subject to such reservations or restrictions as the owner may see fit to impose, provided the reservations are not contrary to public policy, and such reservations or restrictions create an easement, or servitude in the nature of an easement, upon the land conveyed for the benefit of the adjoining property of which the grantor remains the owner, and a grantee from the former owner who imposes the restriction is entitled to the same remedy for its enforcement as was the grantor. Cawthon v. Anderson, 211 Ga. 77, 84 S.E.2d 66 (1954). Parties may contract away or extend property rights. - Two parties may contract away their rights or extend their rights as the parties please regarding the use of real property so long as public policy is not violated. Winslette v. Keeler, 220 Ga. 100, 137 S.E.2d 288 (1964). Covenant must concern land and grantee must have notice. - It is only necessary that covenant concern land or use, and that grantee has notice of it for the covenant to be enforceable against the grantee. Reeves v. Comfort, 172 Ga. 331, 157 S.E. 629 (1931). Obligation must be clearly expressed or clearly implied. Yaughn v. Harper, 151 Ga. 187, 106 S.E. 100 (1921). When it is plainly stated in the defendant’s deed the purposes for which the property could be used, the parties excluded the property from use for any other purpose. Taylor v. Smith, 221 Ga. 55, 142 S.E.2d 918 (1965). Covenant to maintain subdivision’s quality not void. - Covenant to maintain the high quality of a subdivision is not harmful to the public welfare, nor so vague and indefinite as to be void. Winslette v. Keeler, 220 Ga. 100, 137 S.E.2d 288 (1964). Purchaser of land is conclusively charged with notice of restrictive agreements or cov-

enants contained in a deed which constitutes one of the muniments of the purchaser’s own title, and generally this is true, whether the deed containing such covenants is recorded or not. Reeves v. Comfort, 172 Ga. 331, 157 S.E. 629 (1931). Compliance with restrictive covenants required. - Trial court properly entered an injunction against a husband and wife requiring them, as homeowners and members of a neighborhood property owners association, to remove a chain link fence that was not allowed pursuant to the association’s covenants, and the association did not waive enforcement, nor did estoppel apply to grant the husband and wife exception from the association’s rules. Wright v. Piedmont Prop. Owners Ass’n, 288 Ga. App. 261, 653 S.E.2d 846 (2007). Purchaser with benefit of covenant shall bear burden. - When a covenant is entered into and the covenant is for the benefit of the purchaser, the seller gets an enhanced price for the seller’s land, and if seller reserves or requires a benefit for the seller and the seller’s assigns, the seller gets present value therefor. In either case, the covenant becomes in effect a part of the estate itself, and whoever takes the estate in one case should have the benefit and in the other should bear the burden. Reeves v. Comfort, 172 Ga. 331, 157 S.E. 629 (1931). Presumption of full use of easement right-of-way. - Recorded subdivision plats and deeds to subdivision lots created a legal rebuttable presumption that ‘‘reasonably necessary use,’’ ‘‘fair,’’ or ‘‘reasonable enjoyment’’ of the easement required the full use of the right-of-way or street as platted and dedicated, and plaintiff-grantee failed to rebut the presumption in an action to enjoin clear-cutting of the right-of-way. Montana v. Blount, 232 Ga. App. 782, 504 S.E.2d 447 (1998). Grantee succeeds to all of grantor’s rights and liabilities. - When the grantee accepts

a warranty deed from the grantor and enters thereunder, the grantee succeeds to all the rights and liabilities of the grantor in regard to the latter’s equity in the property. Williams v. Joel, 89 Ga. App. 329, 79 S.E.2d 401 (1953). When a security deed, and the power of sale therein contained, were assigned by the original grantee to a new grantee with the same formality of execution as to the deed itself, the power of sale therein contained was one which might properly be exercised by the second grantee in the foreclosure proceedings. Williams v. Joel, 89 Ga. App. 329, 79 S.E.2d 401 (1953). Effect of accord and satisfaction on obligation. - Accord and satisfaction evidenced by warranty deed wipes out an antecedent pecuniary obligation. Waters v. Lanier, 116 Ga. App. 471, 157 S.E.2d 796 (1967). Grantee taking property by deed containing agreement to pay debt personally liable. - Remote grantee of mortgaged property, who takes by a deed in which the grantee agrees to pay a debt, is personally liable to the mortgagee if the intermediate grantor took only subject to the debt and was not personally liable for the debt. Somers v. Avant, 244 Ga. 460, 261 S.E.2d 334 (1979); Carr v. Nodvin, 178 Ga. App. 228, 342 S.E.2d 698 (1986). Lessee and assigns bound by covenant for payment of rent. - When a lease for a period of years is duly executed by the lessor with the statutory formalities required for a deed, and the lessee accepts the lease, has it recorded, and enters into possession thereunder, the lessee and the lessee’s assigns will be bound by a covenant therein for the payment of a specified sum as monthly rental, even though the lessee did not sign the instrument. Such a lease is not unilateral and void for the reason contended, that the provision for the payment of rent is not binding on the lessee. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351, 180 S.E. 654 (1935). Subtenant not liable to lessor’s assignee for original lessee’s nonpayment. - Subtenant in possession of premises is not liable in an action ex delicto to one to whom the original lessor subsequently sold the property and assigned the original lease, on account of nonpayment of rents, under an alleged ‘‘conspiracy’’ between the subtenant

and the original lessee to remain in possession without payment of rents or other compensation. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351, 180 S.E. 654 (1935). Covenants not destroyed merely because land more valuable under changed conditions. - Court of equity will not strike down and destroy covenants merely because under the changed condition of a particular subdivision or adjoining subdivisions the lots of land would be more valuable and would yield more taxes to the government if the present owners of the lots in this subdivision could use their land for other than residential purposes. Cawthon v. Anderson, 211 Ga. 77, 84 S.E.2d 66 (1954). Intention to make covenant severable. - When intention to make special covenant severable is denoted, such intention renders covenant separate. Davies v. Blasingame, 181 Ga. 128, 181 S.E. 763 (1935). Breach of covenant which is sole consideration of absolute deed, with covenantor’s insolvency authorizes cancellation, although the deed contains no condition on the happening of which the estate is to determine; on principle, the relief would also extend to recovery of possession of the land. Arrington v. Arrington, 189 Ga. 725, 7 S.E.2d 665 (1940). Condition subsequent, breach of which causes title’s forfeiture, not created. - When a deed did not expressly state a condition that the breach thereof should cause forfeiture of the estate granted, a clause as to providing a home and necessaries of life for the grantor might, by acceptance of the deed and entry of possession thereunder, become binding upon the grantee as a covenant, but the deed did not create a condition subsequent, the breach of which would cause a forfeiture or termination of title conveyed by the deed. Arrington v. Arrington, 189 Ga. 725, 7 S.E.2d 665 (1940). Period of limitation in breach of covenant action is 20 years. - When, as under the common law, a grantee accepts a deed and thereby, without the necessity of an entry, becomes bound by the covenants therein, and the instrument is under seal, the period of limitation in an action for a breach of the covenant is 20 years. Motz v. Alropa Corp., 192 Ga. 176, 15 S.E.2d 237 (1941). Cited in Wadley Lumber Co. v. Lott, 130 Ga. 135, 60 S.E. 836 (1908); Stanley v.

Reeves, 149 Ga. 151, 99 S.E. 376 (1919); Renfroe v. Alden, 164 Ga. 77, 137 S.E. 831 (1927); Phillips v. Blackwell, 164 Ga. 856, 139 S.E. 547 (1927); Peebles v. Perkins, 165 Ga. 159, 140 S.E. 360 (1927); Field v. Hargis, 169 Ga. 670, 151 S.E. 379 (1930); Dye v. Dye, 176 Ga. 72, 166 S.E. 861 (1932); Interstate Inv. Co. v. McCullough, 188 Ga. 206, 3 S.E.2d 733 (1939); Austell Bank v. National Bondholders Corp., 188 Ga. 757, 4 S.E.2d 913 (1939); Ramsey v. Kitchen, 192 Ga. 535, 15 S.E.2d 877 (1941); Peppers v. Peppers, 194 Ga. 10, 20 S.E.2d 409 (1942); Grice v. Grice, 197 Ga. 686, 30 S.E.2d 183 (1944); Lawson v. Lewis, 205 Ga. 227, 52 S.E.2d 859 (1949); Moore v. Wells, 212 Ga. 446, 93 S.E.2d 731

(1956); Howard v. Perkins, 229 Ga. 279, 191 S.E.2d 46 (1972); Boxwood Corp. v. Berry, 144 Ga. App. 351, 241 S.E.2d 297 (1977); Antill v. Sigman, 240 Ga. 511, 241 S.E.2d 254 (1978); Flake v. Fulton Nat’l Bank, 146 Ga. App. 40, 245 S.E.2d 330 (1978); Sellers v. Citizens & S. Nat’l Bank, 177 Ga. App. 85, 338 S.E.2d 480 (1985); Argyle Realty Co. v. Cobb County School Dist., 259 Ga. 654, 386 S.E.2d 161 (1989); Southeast Toyota Distribs., Inc. v. Fellton, 212 Ga. App. 23, 440 S.E.2d 708 (1994); Lanier v. Burnette, 245 Ga. App. 566, 538 S.E.2d 476 (2000); Casey v. Wachovia Bank, N.A., 273 Ga. 140, 539 S.E.2d 503 (2000).

RESEARCH REFERENCES Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 157 et seq. C.J.S. - 26A C.J.S., Deeds, § 198 et seq. ALR. - Outstanding title or claim in grantee as breach of covenant in deed, 10 ALR 441. Effect on validity and character of instrument in form of deed, of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 11 ALR 23; 31 ALR2d 532. Severance of title or rights to oil and gas in place from title to surface, 29 ALR 586; 146 ALR 880. Reservation of vendor’s lien as preventing severance of estate in mineral from estate in surface by deed otherwise having that effect, 29 ALR 618. Reservation in grant of land of right to hunt and fish with like right to the grantee, as limiting the right of the grantee actual owners of the land, 32 ALR 1533. Acquiescence by purchaser of lot in restricted district in violations of restrictions as to some lots as waiver of right to insist upon it as to others, 46 ALR 372; 85 ALR 936. Quantum of estate granted by a deed as affected by covenant, 47 ALR 869. Continued use of property for burial purposes as a condition subsequent of a conveyance of dedication of land for that purpose, 47 ALR 1174. Reservation by grantor of the right to require payment for existing party wall when used, 52 ALR 494. Structure intended as an outbuilding, but

temporarily used as a residence, as breach of restrictive covenant respecting character or cost of residence, 60 ALR 253. Measure of damages for breach of covenants of title in conveyances or mortgages of real property, 61 ALR 10; 100 ALR 1194. What is a ‘‘manufacturing’’ business or enterprise within covenant restricting the use of real property, 81 ALR 1047. Deed as superseding, or merging, provisions of antecedent contract imposing obligations upon the vendor, 84 ALR 1008; 38 ALR2d 1310. Period of duration of covenant restricting use of real property when not expressly stated, 95 ALR 458. Fee simple conditional, 114 ALR 602. Character as a conditional limitation or condition subsequent, or as a covenant, of provision or recital in deed a purchase for which land is to be used, as affected by fact that deed was voluntary or for a merely nominal consideration, 116 ALR 76. Construction and application of restrictive covenants relating specifically to schools, 124 ALR 448. ‘‘Tourist home’’ or tourist camp as violation of restrictive covenant as to use of real property, 127 ALR 853. Character as condition, limitation, covenant, or trust of provision in deed as to purpose for which property is to be used as affected by introduction with word ‘‘provided’’ or its derivatives, 135 ALR 1135. Delivery of deed as conditioned on obtaining signature of another as grantor, 140 ALR 265.

Building restrictions, by covenant or condition in deed or by zoning regulation, as applied to religious groups, 148 ALR 367. Benefit of provision in deed which limits or qualifies grant or reservation of mineral rights, as passing to subsequent grant or encumbrancer of land, upon the theory that it is a covenant running with the land, or upon the ground that it creates an interest in the land and passes as such, 151 ALR 818. Validity of reservation of oil and gas or other mineral rights in deed of land, as against objection of repugnancy to the grant, 157 ALR 485. Provision of building restriction which permits garage or other outbuilding as applicable to lot on which there is no other building, 162 ALR 1098. Easement or servitude or restrictive covenant as affected by sale for taxes, 168 ALR 529. Computation of number or percentage of owners signing restrictive agreement affecting real property, 173 ALR 316. Construction and application of covenant restricting use of property to ‘‘residence’’ or ‘‘residential purposes,’’ 175 ALR 1191. Validity and effect of deed executed in blank as to name of grantee, 175 ALR 1294. Change of neighborhood in restricted district as affecting restrictive covenant; decisions since 1927, 4 ALR2d 1111. Omission from deed of restrictive covenant imposed by general plan of subdivision, 4 ALR2d 1364. Oral agreement restricting use of real property as within statute of frauds, 5 ALR2d 1316. Use of property by college fraternity or sorority as violation of restrictive covenant, 7 ALR2d 436. Effectiveness of reservation of vendor’s crop rights in land contract in absence of such reservation in deed later executed, 8 ALR2d 565. Estoppel of mortgagee to contest the mortgagor’s title, 11 ALR2d 1397. Church as violation of covenant restricting use of property, 13 ALR2d 1239. Personal covenant in recorded deed as enforceable against grantee’s lessee or successor, 23 ALR2d 520. Maintenance, use, or grant of right of way over restricted property as violation of restrictive covenant, 25 ALR2d 904.

‘‘Fronting’’ of corner lot on both streets or on only one, within restrictive covenant, 30 ALR2d 559. Covenant in conveyance requiring erection of dwelling as prohibiting use of property for business or other nonresidential purpose, 32 ALR2d 1207. Building side line restrictive covenants, 36 ALR2d 861. Validity of provision of will or conveyance limiting alienation to certain individuals or those of a limited class, 36 ALR2d 1437. Deed as superseding or merging provisions of antecedent contract imposing obligations upon the vendor, 38 ALR2d 1310. Validity of provisions of will or deed prohibiting, penalizing, or requiring marriage to one of a particular religious faith, 50 ALR2d 740. Deed as imposing upon vendee obligations additional to, or as superseding or merging obligations imposed by, antecedent contract, 52 ALR2d 647. What constitutes acceptance of deed by grantee, 74 ALR2d 992. Use of premises for parking place as violation of restrictive covenant, 80 ALR2d 1258. Construction and effect of restrictive covenant in deed or conveyance specifically prohibiting or limiting the keeping of animals, such as livestock, fowl, etc., on the premises, 89 ALR2d 990. Validity, construction, and effect of contractual provision regarding future revocation or modification of covenant restricting use of real property, 4 ALR3d 570. Covenant restricting use of land, made for purpose of guarding against competition, as running with land, 25 ALR3d 897. Zoning or other public restrictions on the use of property as affecting rights and remedies of parties to contract for the sale thereof, 39 ALR3d 362. Covenant in deed restricting material to be used in building construction, 41 ALR3d 1290. Meaning of terms ‘‘city,’’ ‘‘town,’’ or the like as employed in restrictive covenants not to compete, 45 ALR3d 1339. Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor’s spouse, 52 ALR3d 753. Use of property for multiple dwellings as violating restrictive covenant permitting

property to be used for residential purposes only, 99 ALR3d 985. Restrictive covenants as to height of structures or buildings, 1 ALR4th 1021. Validity, construction, and effect of restrictive covenants as to trees and shrubbery, 13 ALR4th 1346. Validity of zoning or building regulations restricting mobile homes or trailers to established mobile home or trailer parks, 17 ALR4th 106. Validity and construction of restrictive cov-

enant prohibiting or governing outside storage or parking of housetrailers, motor homes, campers, vans, and the like, in residential neighborhoods, 32 ALR4th 651. Radio or television aerials, antennas, towers, or satellite dishes or discs as within terms of covenant restricting use, erection, or maintenance of such structures upon residential property, 76 ALR4th 498. Easement, servitude, or covenant as affected by sale for taxes, 7 ALR5th 187.