Attempted Renewal of Our Restrictive Covenants

This is an editorial web site and all views and statements contained herein are the opinions of the author, Jimmy Neal, et al.

The Restrictive Covenants of Beaver Run have never been enforced for the benefit of the neighborhood. Since 1995 Bonnie Frith has used our Restrictions as a business tool for profit, and a weapon to slap down anyone who disagrees with her. The scenario that I have witnessed time and time again goes like this: Someone buys a lot, putting down an amount of money, makes payments for a length of time and makes improvements to the property. At some point Bonnie, and Jim, begin sending harassing letters claiming restriction violations and terminate the contract; keeping all money paid and all improvements to the lot.

Whenever someone tries to straighten out the problems here in Beaver Run or challenges Bonnie's authority , Bonnie has a hissy fit. She begins a campaign of letter writing and accusations of restriction violations in an attempt to remove the "trouble maker" from HER neighborhood. In my case it went a bit farther. She tried to charge me with burglary at her office in Roswell, Ga, (faked I believe), then tried to hire someone to burn down my house or plant drugs in it. Neither worked, I'm still here. (See the Statement from Rick Harrelson).

When this deadly duo makes a move for profit or revenge, they don't seem to care if their actions are legal or not. So, when I heard that they had renewed the Restrictive Covenants, I suspected that there was foul play afoot. It took a while to find this document at the Clerk of Court's office, but I now have a copy and I'm happy to say that, in my opinion, it isn't worth the paper it's printed on. There are several reasons for this, which I will outline, beginning with the false statements within the document and ending with the Georgia code that says these Restrictive Covenants cannot be renewed.

First, here are links to a certified copy of the document itself as copied by the Haralson County Clerk of Court's office:

Following is the text of the document with our comments on the irregularities we have found, an explanation as to why we feel this document is not valid in and of itself, and the circumstances which brought it about.

Personally appeared before the undersigned officer, duly authorized to administer oaths, JAMES L. FRITH, SR.,¹ who after being duly sworn, deposes and says as follows:

I am over the age of 18 years and am under no legal disabilities, and I am therefore competent to testify as to the matters contained herein.

This affidavit is given based on my personal knowledge of the current ownership of certain lots within the Beaver Run Subdivision description the above-referenced deeds and protective covenants, as it pertains to various amendments to be made to said covenants.

Along with Dr. Charles Garrison, I assisted in the development of the subdivision known as Beaver Run after Garrison purchased the property from Virginia Smith Hoffman and Roy T. Smith, Jr. on or about February10, 1987.

At the time Garrison purchased the subdivision property, I assisted in the preparation and recording of an initial set of protective covenants, dated September 16, 1987, recorded in Deed Book 284, Page 519, in the Office of the Clerk of Superior Court of Haralson County, Georgia Deed Records.

These covenants were later amended on or about October 2, 1987, by a set of covenants recorded in Deed Book 284, Page 793, in the Office of the Clerk of Superior Court of Haralson County, Georgia Deed Records.

The Covenants were further amended as to paragraph 19, by instrument recorded on September 12, 1991 in Deed Book 317, Page 305, in the Office of the Clerk of Superior Court of Haralson County, Georgia Deed Records.

The original plats for the subdivision were prepared by Roy A. Terrell in 1987 and recorded in Plat Book 13, Page 146; Plat Book 15, Page 16, Plat Book 16, Page 82; Plat Book 16, Page 94, and Plat Book 26, Page 92 in the Office of the Clerk of Superior Court of Haralson County, Georgia Deed Records. However, I later determined that these plats were

inaccurate in several places ²and had the entire subdivision resurveyed by Joseph N. Savage, Georgia Registered Land Surveyor No. 2305. The new plats are recorded in Plat Book 35, Page 95, Plat Book 35, Page 106, Plat Book 37, Pages 86 and 145-146, and Plat Book 38, Page 76, in the Office of the Clerk of Superior Court of Haralson County, Georgia Deed Records.

I am the principal organizer and member of two limited liability companies known as Beaver Run, LLC and MH Investments, LLC. Beaver Run, LLC was formed on or about November 27, 2000, and MH Investments, LLC was formed on or about November 17, 2003.

Beaver Run, LLC is currently the record title owner of the following 44 lots: 1B,³ 10, 16A, 16B, 17, 26, 29, 30, 33, 34, 38, 39, 40, 41, 46, 47, 48, 51, 52, 53, 56, 58, 60, 68A, 68B, 69, 70A, 70B, 71A, 71B, 76, 77, 78, 83, 84, 85B, 89, 93, 94, 100B,³ 101, 102, 106, and 109.

MH Investments, LLC is currently the record title owner of the following 18 lots: 5, 9,⁴ 12, 15A, 15B, 19, 32A, 43, 45, 54, 66,⁴ 73B, 74, 75, 97B, 105, 107, and 110.

Together, Beaver Run, LLC and MH Investments, LLC hold title to 62 lots in the subdivision, which amounts to 49% ⁵of the total lots in Beaver Run.

I have obtained the consent and agreement of the following lot owners to amend the existing covenants for Beaver Run by extending the term of the initial declaration and providing for future automatic extensions, unless sooner terminated by agreement of a certain percentage of lot owners: William R. Looman (Lots 95, 96); Delia Mae Wallace (Lot 21); Philip Roupas (Lot 108A); Sharyl Batchelor (Lot 55); and Shirley Lawing (Lot 18).⁶ Said documents are being recorded contemporaneously with this affidavit.

Paragraph 18 of the original covenants contemplates that said covenants may be amended by a declaration signed by at least 51% of the lot owners in the subdivision, prior to the expiration of the initial 20 year term.

Beaver Run, LLC, and MH Investments, LLC, and the above-referenced individual lot owners comprise 68 lots, or 54% ⁷of the total lots in the Beaver Run Subdivision and therefore have the authority to amend the original restrictive covenants, pursuant to paragraph 18 thereof. Said covenants shall be amended to extend the term thereof and provide for subsequent automatic extensions.

It is the purpose and intent of this affidavit to provide constructive notice of the amendments and extension of the original covenants for Beaver Run, as well as the lot owners

who have agreed to such amendments, and their percentage of ownership of the lots in the entire subdivision.

This affidavit is given with the understanding that it will be recorded on the deed records in the Office of the Clerk of Superior Court of Haralson County, Georgia and relied upon by any and all Attorneys, paralegals, title examiners, banks, or other financial and lending institutions, and any and all other persons, firms, or corporations who may examine title to the lots in Beaver Run Subdivision.

¹This document was duly sworn to by James L. Frith Sr. but was signed by James L. Frith Jr. (See above page links, pages 1 and 5 of the document)

²That's an outright lie in the face of the fact that virtually every lot here was changed to some extent. (Surveys are on the way, will post later)

⁴Lots 9 and 66 are not owned by MH Investments, LLC as sworn to, but are in fact owned by Beaver Run, LLC. I don't think MH Investments can claim votes on properties owned by Beaver Run, LLC.

⁵ They are claiming votes on 62 lots, or 49% of the lots in Beaver Run. If you subtract the lots we have shown to be ineligible, they have only 58 votes, or 46% (more on who should actually have these votes later).

⁶As evidenced by the letter below, Jim Frith solicited the signed documents of other land owners in Beaver Run in order to renew these Restrictive Covenants. He then Notarized them himself in violation of Georgia Code 45-17-8. At least one document was not signed in his presence, which is also a violation of Georgia Code 45-17-8.

Paragraph 13 claims votes for Looman's lots 95 and 96. Lot 95 cannot be a part of Beaver Run as it is not present on the plats referenced by Jim Frith's own affidavit in paragraph 7, and lot 96 is listed as an out track. The document signed by Philip Roupas for lot 108 was notarized by James L. Frith, Jr. in violation of OCGA 45-17-8 (d) and is therefore not an admissible document for the purposes it was used. The document signed by Shirley Lawing was notarized by James L. Frith Jr. in violation of OCGA 45-17-8 (d) and is therefore not admissible for the purposes for which it is used.

We maintain that the votes submitted that were notarized by James L. Frith, Jr. were not in compliance with OCGA 45-17-8 and therefore should not be counted; more on this below. That leaves the renewal votes at 46%, far less than the 51% required by the Covenants themselves for any changes to be made effective.

Therefore, on it's face value, the document filed by James L. Frith, Jr. said to renew the Covenants and Restrictions of Beaver Run Subdivision fails to meet the legal requirements to achieve it's stated objective. We firmly believe that the Restrictive Covenants for Beaver Run Subdivision have EXPIRED.

Personally appeared before the undersigned officer, duly authorized to administer oaths, ROBERT T. MONROE, who, after being duly sworn, deposes and says as follows:

I am over the age of 18 years and am under no legal disabilities, and I am therefore competent to testify as to the matters contained herein.

This affidavit is given in connection with the recording of various documents intended to modify the above-referenced restrictive covenants.

Attached to this affidavit are documents evidencing the consent of various lot owners to the amendment and extension of the above-referenced restrictive covenants.

I am an attorney at law and duly licensed to practice law in the State of Georgia. 1 prepared the attached consent documents and affidavit of ownership for James L. Frith, Jr. ^1a on behalf of Beaver Run, LLC, MH Investments, LLC, and Mr. Frith individually.

It is the purpose and intent of the attached consent and amendment documents to provide for an extension of additional 20 years from the date of expiration of the original covenants recorded September 16, 1987 in Deed Book 284, Page 519, and to provide that said covenants will be self-renewing for additional 20 year periods thereafter, unless modified or terminated in accordance therewith. All the rest and remainder of said covenants shall remain in full force and effect.

The attached documents are the original consent documents executed by the lot owners named therein. It is the intent and purpose of this affidavit to provide constructive notice of the modification and extension of the covenants to any and all attorneys, title examiners, banks, financial institutions, or any and all other persons, firms, corporations who may examine title.

^1a Documents prepared by ROBERT T. MONROE, Attorney at law, for James L. Frith Jr. and James L. Frith Sr. signs them, hmmmmmmm, interesting.

Beaver Run Subdivision
Restrictive Covenants
Dated September 16, 1987,
Recorded in Deed Book 284,
Page 519; Deed Book 284, Page
793; Deed Book 317, Page 305,
Haralson County, Georgia
Deed Records.

I am a member of MH Investments, LLC, the record title owner(s) of Lots 5, 9, 12, 15A, 15B, 19, 32A, 43, 45, 54, 66, 73B, 74, 75, 97B, 105, 107, and 110 in the Beaver Run Subdivision. 1 hereby expressly consent and agree to be bounded by the amendment and extension of the restrictive covenants applicable to said subdivision, as set forth in this document. I understand that this document will be recorded on the deed records in the Office of the Clerk of Superior Court of Haralson County, Georgia Deed Records as constructive notice of my consent to amendment and extension of said covenants.

The Covenants and Restrictions applicable to the Beaver Run Subdivision initially recorded in Deed Book 284, Page 519, and subsequently amended in Deed Book 284, Page 793 and in Deed Book 317, Page 305, Haralson County, Georgia Deed Records, shall stand amended as follows:

Paragraph 18 of said covenants shall be stricken in its entirety and the following inserted in lieu thereof:

"These restrictions and covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of 20 years from the date these covenants and restrictions are recorded, after which time these covenants shall be automatically extended for an additional 20-year period. At the end of this second 20-year period, said covenants shall be automatically extended for successive periods of 20 years unless an instrument signed by the record title owners of a majority of the lots has been recorded agreeing to modify or terminate said covenants, in whole or in part"

It is the purpose and intent of this amendment to provide for an extension of additional 20 years from the date of expiration of the original covenants recorded September 16, 1987 at 11:30 a.m. in Deed Book 284. Page 519, and to provide that said covenants will be self-renewing for additional 20year periods thereafter, unless modified or terminated in accordance herewith. All the rest and remainder of said covenants shall remain in full force and effect.

LOT NOS.: 5, 9, 12, 15A, 15B, 19, 32A, 43, 45, 54, 66, 73B, 74, 75, 97B, 105, 107, and 110

Affidavit
EXHIBIT. "A"

Lot 9 and 66 are not owned by MH Investments, they are owned by Beaver Run, LLC. as shown above. MH Investment cannot vote using these properties.

Beaver Run Subdivision
Restrictive Covenants
Dated September 16, 1987,
Recorded in Deed Book 284,
Page 519; Deed Book 284, Page
793; Deed Book 317, Page 305,
Haralson County, Georgia
Deed Records.

I am a member of Beaver Run, LLC. the record title owner(s) of Lots 1B, 10, 16A, 16B,17, 26, 29, 30, 33, 34, 38, 39, 40, 41, 46, 47, 48, 51, 52, 53, 56, 58, 60, 68A, 68B, 69, 70A, 70B, 71A, 71B, 76, 77, 78, 83, 84, 85B, 89, 93, 94, 100B, 101, 102, 106, and 109 in the Beaver Run Subdivision. I hereby expressly consent and agree to be bounded by the amendment and extension of the restrictive covenants applicable to said subdivision, as set forth in this document I understand that this document will be recorded on my deed records in the Office of the Clerk of Superior Court of Haralson County, Georgia Deed Records as constructive notice of my consent to the amendment and extension of said covenants.

The Covenants and Restrictions applicable to the Beaver Run Subdivision initially recorded in Deed Book 284, Page 519, and subsequently amended in Deed Book 214, Page 793 and in Deed Book 317, Page 305, Haralson County, Georgia Deed Records, shall stand amended as follows:

Paragraph 18 of said covenant! shall be stricken in its entirety and the following inserted in lieu thereof:

"These restrictions and covenants an to run with the land and shall be binding on all parties and all persons claiming under them for a period of 20 years from the date these covenants and restrictions are recorded, after which time these covenants shall be automatically extended for an additional 20-year period. At the end of this second 20-year period, said covenants shall be automatically extended for Successive periods of 20 years unless an instrument signed by the record title owners of a majority of the lots has been recorded agreeing to modify or terminate said covenants, in whole or in part."

It is the purpose and intent of this amendment to provide for an extension of additional 20 years from the date of expiration of the original covenants recorded September 16, 1987 at 11:30 a.m. in Deed Book 284, Page 519, and to provide that said covenants will be self-renewing for additional 20 year periods thereafter, unless modified or terminated in accordance herewith. All the rest and remainder of laid covenants shall remain in full force and effect.

This 29th day of August, 2007.
Beaver Run, LLC:
By: James L. Frith, Sr. Title: Member
LOT NOS.: 1B, 10, 16A, 16B,17, 26, 29, 30, 33, 34, 38, 39, 40, 41, 46, 47, 48, 51, 52, 53, 56, 58, 60, 68A, 68B, 69, 70A, 70B, 71A, 71B, 76, 77, 78, 83, 84, 85B, 89, 93, 94, 100B, 101, 102, 106, and 109

5 more of these were filed with these documents in an attempt to muster the 51% of property owners as called for in the original Restrictive Covenants of Beaver Run Subdivision. They are as follows with links to the actual documents:

Bill Looman: Lot 95 & 96 Lot 95 and lot 96 are not included in part of Beaver Run on the plats referenced by Jim Frith's own affidavit, paragraph 7, they are listed as Out Tracks. Besides, the county tax office has lot 96 listed as owned by "LOOMAN VINISSA D & WILLIAM R." Don't legal documents concerning a piece of property have to be signed by both owners if owned jointly?

Philip Roupas: Lot 108A Mr. Roupas did not sign this document in front of Jim Frith. It was improperly Notarized !

Sharyl Batchelor: Lot 55 Jim Frith apparently filled in the date on this, his "J's" are distinctive.

Shirley Lawing: Lot 18 Ms. Lawing signed this one at her home when Jim Frith took it to her, but he did not notarize it until later.

Most of these people, and many other landowners in Beaver Run, were sent the letter below, along with the document that follows (with their name and lot number filled in). It is our position that this process was in violation of OCGA 45-17-8 and therefore invalidates all of these votes.

The Covenants for the development of Beaver Run, of which you are a part of, is going to expire on September 17th, 2007.

These Covenants have many purposes to govern this development, but, equally of importance, is the ability to maintain the roads within the development.

Since the amount of the dues is so low, it takes every dime in the account to buy gravel, grade, and repair all of these roads.

We finally have got the county to finish paving the road up to the entrance of the development.

The big hill inside the development was paved a few years ago. We are in the process of repairing this blacktop.

Without the new Covenants and its "dues" structure, Beaver Run and its land value will be destroyed!!

The roads will go to ruin. People will have a difficult time getting in or out and the development will go down hill quickly.

We need to extend these Covenants and protect the people living there along with the future land values.

Enclosed is a copy to extend the Covenants. Please sign and date where indicated and mail back to me as soon as possible.

This was sent with the above letter and had their name and lot number already filled in:

Beaver Run Subdivision
Restrictive Covenants
Dated September 16, 1987,
Recorded in Deed Book 284,
Page 519; Deed Book 284, Page
793; Deed Book 317, Page 305,
Haralson County, Georgia
Deed Records.

I am/We are ____Names were filled in when sent___ , the record, title owner(s) of Lot ____also filled in____ in the Beaver Run Subdivision. I/We hereby expressly consent and agree to be bounded by the amendment and extension of the restrictive covenants applicable to said subdivision, as set forth in this document. I/We understand that this document will be recorded on the- deed records in the Office of the Clerk of Superior Court of Haralson County, Georgia Deed Records as constructive notice of my consent to the amendment and extension of said covenants.

The Covenants and Restrictions applicable to the Beaver Run Subdivision initially recorded in Deed Book 284, Page 519, and subsequently amended in Deed Book 284, Page 793 and in Deed Book317, Page 305, Haralson County, Georgia Deed Records, shall stand amended as follows:

Paragraph 18 of said covenants shall be stricken in its entirety and the following inserted in lieu thereof:

"These restrictions and covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of 20 years from the data these covenants and restrictions are recorded after which time these covenants shall be automatically extended for an additional 20-year period. At the end of this second 20-year period, sold covenants shall be automatically extended for successive periods of 20 years unless an instrument signed by the record title owners of a majority of the lots has been recorded agreeing to modify or terminate said covenants^ in whole or in part."

It is the purpose and intent of this amendment to provide for an extension of additional 20 years from the date of expiration of the original covenants recorded September 16, 1987 at 1 1:30 a.m. in Deed Book 284, Page 519, and to provide that said covenants will be self-renewing for additional 20 year periods thereafter, unless modified or terminated in accordance herewith. All the rest and remainder of said covenants shall remain in full force and effect

The above section was to show that the document Jim Frith filed in an attempt to extend the Restrictive Covenants is faulty of it's own accord for the following reasons:

As I understand, this was the law in effect at the time our Restrictive Covenants were drafted and recorded.

Georgia Code § 29-301 (4192) Covenants running with land go to purchaser

The purchaser of lands obtains with the title, however 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, or of quiet enjoyment, or of freedom from incumbrances, contained in the conveyance from any former grantor, unless the transmission of such covenants with the land is expressly negatived in the covenant itself: Provided, however, that 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: Provided, further, that this limitation 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, the State of Georgia, 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 covenants and scenic easements running in favor or for the benefit of the land so held for the use of the public. However, such covenants and scenic easements shall run in perpetuity.
(Acts 1935, p. 112; 1962, p. 540; 1971, p. 814.)
Cross References
Limitation of actions for breach of covenant restricting use of land, see § 3-717. Power of sale as authorizing private sale, see § 37-616. Judicial sale, purchaser's original title, see § 39-1305. Fraud, covenants of warranty, etc., see § 39-1307. Definition of realty, see § 85-201.

This may take a couple of reads, but it is worth the time to understand it:

CANTERBURY FOREST ASSOCIATION v. COLLINS.

http://www.lawskills.com/case/ga/id/22028/

A00A0924.

(243 Ga. App. 425)

(532 SE2d 736)

(2000)

ELDRIDGE, Judge.

Restrictive covenants. Muscogee Superior Court. Before Judge Followill.

Canterbury Forest Association, a subdivision homeowners' association in Muscogee County, appeals from the trial court's entry of summary judgment on its complaint against Randy Collins. The complaint was based upon Collins' alleged violation of restrictive covenants on his property. The trial court found that such covenants had expired and, therefore, granted Collins' motion for summary judgment. This Court finds that the trial court erred and reverses the trial court's order.

The relevant facts, viewed in a light most favorable to the association, as nonmovant, 1 are as follows: On June 15, 1975, Canterbury Forest Association adopted bylaws and various restrictive covenants for the subdivision's 26 lots. Collins purchased Lot 3 in August 1992; the deed included a provision which conveyed the land "subject to all valid and enforceable restrictive covenants and easements of record."

On March 16, 1995, Collins and 24 of the remaining 25 Canterbury Forest Association members signed an "Amendment to the Property Owners Agreement and Covenants," wherein they agreed to extend the covenants for an additional 20 years, until June 15, 2015.

In September 1998, Collins constructed a 1,400-square-foot metal building on his property in alleged violation of the covenants. The association demanded that Collins remove the building, and when he refused, it filed suit against him. Following a hearing on Collins' motion for summary judgment, the trial court determined that the covenants had expired as a matter of law and granted Collins' motion. The association appeals from this order. Held:

1. In its first enumeration, the association contends that the trial court erred in determining that the covenants had expired 20 years after their adoption, pursuant to OCGA 44-5-60 (b), and were not automatically renewed under OCGA 44-5-60 (d) (1). We disagree.

(a) Under OCGA 44-5-60 (b), "covenants restricting lands to certain uses shall not run for more than 20 years" in counties with zoning laws. Therefore, unless renewed, such covenants expire as a matter of law after 20 years. From 1991 until July 1, 1993, OCGA 44-5-60 (d) permitted landowners to renew such covenants for an additional 20 years. See Ga. L. 1991, p. 334, 1. In order to renew the covenants, the statute required that the landowners approve the renewal by a two-thirds vote prior to the expiration dates of the covenants; that an attorney conduct a title search to confirm the record owners; and that several specific documents be prepared and filed in the county records. Id.

The Georgia General Assembly eliminated this renewal provision, however, by amending OCGA 44-5-60 (d), effective July 1, 1993. Ga. L. 1993, p. 782, 1. Under the current version of OCGA 44-5-60 (d),

covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the [twenty-year expiration period] unless terminated [by fifty-one percent of the plot owners within two years prior to the expiration of the covenant]. 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.

(Emphasis supplied.) OCGA 44-5-60 (d) (1). See also OCGA 44-5-60 (d) (2).

However, the automatic renewal provision of OCGA 44-5-60 (d), as amended in 1993, does not apply to the covenants at issue herein, so that the covenants expired in June 1995 after 20 years, pursuant to OCGA 44-5-60 (b). This finding is based upon the fact that the covenants were adopted in 1975, before the automatic renewal provision was adopted in 1993, and upon the Supreme Court of Georgia's decision in Appalachee Enterprises v. Walker, 266 Ga. 35, 36 (1) (463 SE2d 896) (1995). In Appalachee, the Court held that the automatic renewal provision of the 1993 amendment to OCGA 44-5-60 (d) could not be applied retroactively and applied only to covenants adopted after July 1, 1993. Therefore, covenants adopted prior to that date automatically expire after 20 years pursuant to OCGA 44-5-60 (b).

(b) (i) Further, under the same analysis, since the covenants herein were adopted prior to the 1990/1991 amendments creating renewal procedures, such procedures cannot be retroactively applied to breathe new life into covenants which were slated to expire as a matter of law. Notably, the 1990/1991 amendments had already been replaced by the 1993 automatic renewal provision at the time the association attempted renewal of the covenants in 1995.

(ii) Even if the 1990/1991 renewal procedures could be utilized to save these covenants, the association failed to strictly comply with the specific statutory requirements for such renewal. See Ga. L. 1991, p. 334, 1. The association admits that it failed to file an attorney's affidavit and other required paperwork but insists that it substantially complied with the provision. However, the record clearly shows that it did not substantially comply with the statute. Further, substantial compliance is not enough when such covenants serve to restrict a landowner's lawful use and enjoyment of his land. Since restrictions on private property are generally not favored in Georgia, they:

will not be enlarged or extended by construction, and any doubt will be construed in favor of the grantee. When it is sought to restrict one in the use of his own private property for any lawful purpose, the ground for such interference must be clear and indubitable. The word indubitable in its literal sense means without doubt.

(Citation and punctuation omitted.) England v. Atkinson, 196 Ga. 181, 184 (1) (26 SE 431) (1943).

Accordingly, the trial court did not err in determining that the covenant had expired as a matter of law on June 15, 1995.

Promissory estoppel is codified in Georgia as OCGA 13-3-44 (a), which reads as follows: "[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." See Kamat v. Allatoona Fed. Sav. Bank, 231 Ga. App. 259, 263 (3) (498 SE2d 152) (1998); see also Knotts Landing Corp. v. Lathem, 256 Ga. 321, 324 (3) (348 SE2d 651) (1986).

To prevail on a promissory estoppel claim, plaintiffs must show that (1) defendant made certain promises, (2) defendant should have expected that plaintiffs would rely on such promises, (3) the plaintiffs did in fact rely on such promises to their detriment, and (4) injustice can be avoided only by enforcement of the promise. [Cits.]

Kamat v. Allatoona Fed. Sav. Bank, supra at 263 (3).

In this case, the landowners attempted, but failed, to execute a renewal of the existing covenants for 20 additional years. However, the record demonstrates that the landowners continued to conduct themselves in compliance with the covenants and continued to enforce the covenants as to each other for the next three years, unaware that the covenants had expired. The record clearly shows that, because they relied on the agreement to extend the covenants, the landowners took no action to enact new covenants or otherwise protect their property interests. Such forbearance, combined with their continued compliance with and enforcement of the covenants, binds Collins and the other 24 landowners personally 2 to comply with the covenants and prohibits them from violating such covenants until June 15, 2015.

Accordingly, this Court finds that Collins was bound by the covenants at issue at the time of his alleged violation in 1998.

1 Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2 The promise to comply with the covenants until June 15, 2015, however, applies to the landowners and Collins in their personal capacities and does not run with the land; therefore, it is not binding on subsequent landowners or assignees. See Johnson v. Myers, 226 Ga. 23 (172 SE2d 421) (1970); James Talcott, Inc. v. Roy D. Warren Commercial, 120 Ga. App. 544, 545 (1) (171 SE2d 907) (1969).

Miller, Layfield & Lee, Lucius M. Layfield III, Harry O. Lee, Jr., Melissa R. Reynolds, for appellant.

DECIDED MARCH 28, 2000 -- RECONSIDERATION DENIED APRIL 11, 2000 -- CERT. APPLIED FOR.

Although Georgia Code and Case Law are sometimes difficult to understand, I have found that reading it several times, taking a sentence at a time, is helpful.

I'm just expressing myself here, but, I don't think I can be held to the Restrictive Covenants of Beaver Run because I did not agree to an Extension of the Beaver Run Covenants and Restrictions. While Jim Frith, his Corporations, and the 5 people who signed the Affidavits may be bound by them, I am not. Furthermore, I refuse to abide by them.

When my family purchased this property in 1987 the Restrictions were set to expire in 2007. We relied on this document to plan our future for this property. If Jim and Bonnie Frith, or anyone else, wish to submit to the Restrictions as renewed, they are welcome to do that, but I WILL NOT.

This is an editorial web site and all views and statements contained herein are the opinions of the author, Jimmy Neal, et al.

Nothing on this Site should be considered as legal advice. We are not attorneys, but we do have our opinions.

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