Posted by: Patricia Salkin | March 18, 2011

GA Supreme Court Affirms Removal of Injunction Allowing Pool in Violation of Restrictive Covenant

Neighbors, resident of a homeowners’ association community, challenged a denial of their request for an injunction to force the Goldens to remove a swimming pool they had constructed in the side yard of their own property.  The neighbors claim that one of the restrictive covenants limits the construction of swimming pools to areas behind the residential units. The Goldens applied to the architectural review board for a permit to construct the pool in their side yard, and at the time the approval was granted, neither the Goldens nor the board were aware of the restriction.  Following the approval, the Goldens made a $1,975 deposit on the pool.  A few days later, construction equipment arrived at their property and at least one of the neighbors appealing the decision was aware at this time that the pool was to be constructed. Five days later, one neighbor voiced objection to the pool’s location to the Goldens, and neighbors started to complain to the homeowners’ association. Several days later the Goldens made another payment of $2,089 for pool construction related expenses.  Following an association meeting, the members informed the Goldens that their neighbors were not happy and that the pool was not in compliance with restrictions, but the association allowed the construction to continue since the ARB had given approval.  The association decided to use up to $4,000 of association funds to help the Goldens purchase matured shrubbery to hide the pool from view from the street.  A few days later, the Goldens made a $15,800 progress payment on the pool.

Neighbors, unhappy with the situation, filed a lawsuit seeking an injunction against further construction of the pool, an injunction compelling removal of the pool and return of the property to its original state, attorney fees and damages for injury to property values and misappropriation of association funds.  The Goldens continued construction and paid $8,022 towards landscaping. The trial court initially denied the temporary injunction but then reversed itself and granted the injunction preventing further action on the pool construction.  Three months later a final judgment was entered removing the injunction and denying the neighbors claims on the doctrine of laches since the harm that would be suffered by the Goldens outweighed the speculative harm suffered by the neighbors.

The Georgia Supreme Court upheld the removal of the injunction finding that the Goldens received express permission from the architectural review board and from the association, and the neighbors, despite their knowledge of the planned pool, did not file a lawsuit until 24 dates after receiving notice the pool was being constructed, and that by this time, the pool was half-way complete and the  Goldens had expended more than $20,000. Therefore, the trial court did not abuse its discretion in concluding that the lawsuit was barred by laches.

Waller v Golden, 2011 WL 680179 (Ga. 2/28/2011).

The opinion can be accessed at: http://www.gasupreme.us/sc-op/pdf/s10a1598.pdf


Responses

  1. This is some interesting stuff!

    An idea that rises for me is the sense of ownership neighbors have in co-regulating the building of entities (in this case a pool) that the are not directly involved in the purchase of. “Playing by the rules” seems to be their argument but did they have a right to contest the construction in the first place? What are your thoughts?

    Michael


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