O.C.G.A. § 9-3-29 (2019)

Annotations

Law reviews. For comment, “Injunction Remedy for

Breach of Restrictive Covenants: An Economic Analysis,” see 45 Mercer L. Rev. 543 (1993). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016).

JUDICIAL DECISIONS This section applies specifically to covenants, and does not include other land restrictions, such as conditions subsequent. Munford, Inc. v. Citizens & S. Nat’l Bank, 151 Ga. App. 112, 258 S.E.2d 766, 1979 Ga. App. LEXIS 2451 (1979). Section inapplicable to easements. - O.C.G.A. §§ 9-3-29 and 44-5-60 limit the enforceability of restrictive covenants and hence are inapplicable to a cause of action which is based upon the alleged existence of easements. Estate of Seamans v. True, 247 Ga. 721, 279 S.E.2d 447, 1981 Ga. LEXIS 843 (1981). Action on assessments. - Corporation’s failure to file a declaratory judgment action within two years of the filing of a supplementary declaration containing a ceiling on assessments against additional property owners did not waive its right to challenge the ceiling’s validity in a timely action for damages for failure to pay assessments. Martin’s Landing Found., Inc. v. Landing Lake Assocs., 707 F.2d 1329, 1983 U.S. App. LEXIS 26424 (11th Cir. 1983). O.C.G.A. § 9-3-29, rather than the statute of limitations applicable to written contracts, applied to an action by a homeowners association to collect past due condominium assessments. Heard v. Whitehall Forest E. Homeowners Ass’n, 230 Ga. App. 61, 495 S.E.2d 318. Waiver. - There is no waiver when there is no knowledge of the breach of the restrictive covenant by those who have a right to enforce it. Devins v. Leafmore Forest Condominium Ass’n, 200 Ga. App. 158, 407 S.E.2d 76, 1991 Ga. App. LEXIS 778 (1991), cert. denied, No. S91C1374, 1991 Ga. LEXIS 549 (Ga. Sept. 6, 1991).

Downstream landowners’ claims of negligence, strict liability, trespass and nuisance, based on discharge of wastewaters into a creek related to continuing abatable acts by the defendant and the statute of limitations only precluded the plaintiffs’ recovery for injurious acts which occurred more than four years prior to the plaintiffs’ filing suit. Culbertson v. Coats Am., Inc., 913 F. Supp. 1572, 1995 U.S. Dist. LEXIS 20668 (N.D. Ga. 1995). Continuing nuisance theory does not apply to a claim for breach of a restrictive covenant. Helmley v. Liberty County, 242 Ga. App. 881, 531 S.E.2d 756, 2000 Ga. App. LEXIS 381 (2000). Accrual of cause of action. - O.C.G.A. § 10-1-401(a)(1) did not bar a home buyer’s claim under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the buyer did not suffer any actual damages at the time of the alleged violation and could not have suffered any such damages at least until the homebuilder conveyed the house to the buyer without complying with code requirements or used the contractual language in question to deny liability; therefore, the buyer’s cause of action did not accrue until less than two years prior to the date suit was filed. Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68, 2005 Ga. LEXIS 146 (2005). Suit alleging violation of a restrictive covenant was timely under O.C.G.A. § 93-29(a) because the suit accrued when a real estate developer failed to build a fence between abutting properties, as required by the covenant, and the suit was filed within two years of accruing. Lesser

v. Doughtie, 300 Ga. App. 805, 686 S.E.2d 416, 2009 Ga. App. LEXIS 1271 (2009). Under the express language of O.C.G.A. § 9-3-29, the limitation period begins to run immediately upon a property owner’s first use of the owner’s property in violation of a restrictive covenant; thus, to the extent that Black Island Homeowners Assn. v. Marra, 263 Ga. App. 559 (2003) and Marino v. Clary Lakes Homeowners Assn., 322 Ga. App. 839 (2013) apply the

continuing nuisance theory to determine when the statute of limitation begins to run under § 9-3-29, those cases are overruled. S-D RIRA, LLC v. Outback Prop. Owners’ Ass’n, 330 Ga. App. 442, 765 S.E.2d 498, 2014 Ga. App. LEXIS 846 (2014), cert. denied, No. S15C0643, 2015 Ga. LEXIS 341 (Ga. May 11, 2015), cert. denied, No. S17C0778, 2017 Ga. LEXIS 509 (Ga. June 5, 2017).

RESEARCH REFERENCES Am. Jur. 2d. 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, §§ 112 et seq., 264, 265, 276 et seq. 51 Am. Jur. 2d, Limitation of Actions, § 112 et seq. C.J.S. 21 C.J.S., Covenants, §§ 24 et seq., 50. 54 C.J.S., Limitations of Actions, § 82 et seq., 215. ALR. Limitation of actions: when does statute begin to run against action based on removal of lateral or subjacent support, 26 A.L.R. 1235. When does statute of limitations commence to run against action for breach of covenant against encumbrances, 99 A.L.R. 1050. Suit to rescind contract as one based on contract or covenant within statute of limitations, 114 A.L.R. 1525. Continuing character, as regards limitation of actions, of breach of lessee’s duty under oil and gas lease to protect against drainage by surrounding wells, 138 A.L.R. 257. Use of property by college fraternity or sorority as violation of restrictive covenant, 7 A.L.R.2d 436.

Time when statute of limitation starts to run against breach of covenant running with land and requiring affirmative acts by covenantor, 17 A.L.R.2d 1251. Commencement of running of statute of limitations respecting actions by owners of right of re-entry, or actions against third persons by reversioners, 19 A.L.R.2d 729. Covenant restricting use of land, made for purpose of guarding against competition, as running with land, 25 A.L.R.3d 897. Validity and construction of restrictive covenant requiring consent to construction on lot, 40 A.L.R.3d 864. Change of neighborhood as affecting restrictive covenants precluding use of land for multiple dwelling, 53 A.L.R.3d 492. Restrictive covenant limiting land use to “private residence” or “private residential purposes”: interpretation and application, 43 A.L.R.4th 71. Waiver of right to enforce restrictive covenant by failure to object to other violations, 25 A.L.R.5th 123. Laches or delay in bringing suit as affecting right to enforce restrictive building covenant, 25 A.L.R.5th 233.