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June 28, 2005
Statute of Limitations
The Supreme Court has partly affirmed and partly reversed the Court of Appeals of Georgia in Scully v. First Magnolia Homes et al., S04G2110. Presiding Justice Leah Ward Sears wrote for the Court.
Appellants filed “suit alleging that the appellees negligently installed synthetic stucco siding on [their] . . . home.” The trial court in Fulton County granted “summary judgment in favor of the defendants, ruling that the breach of contract claim was barred by the applicable six-year statute of limitations [footnote omitted] and the tort claim was barred by the applicable four-year statute of limitations.” The Court of Appeals affirmed.
In partly affirming the Court of Appeals, the Supreme Court has ruled “that the statute of limitations for the Scully’s tort claim commenced running when the Scullys, through the exercise of reasonable diligence, should have discovered that their home was being damaged due to defective synthetic stucco siding.” However, in partly reversing the Court of Appeals, the Supreme Court has ruled “that the statute of limitations for the Scully’s breach of contract claim commenced running when a purchase and sale agreement was executed, rather than when the sale was closed.” [Full Opinion - PDF]
Posted by joewest at 1:09 PM
Permanent structure in easement
WOODRIDGE ESCONDIDO PROPERTY OWNERS ASSOCIATION, Plaintiff and Respondent, v. PAUL NIELSEN, Defendant and Appellant. (CA Super. Ct. No. GIN029081)
This case involves a dispute between a homeowners association and a homeowner regarding the construction of a wooden deck over an easement. Plaintiff Woodridge Escondido Property Owners Association(association) managed a planned residential development known as Woodridge in Escondido. Defendant Paul Nielsen owned a home in Woodridge and had a side yard easement over the adjoining property of his neighbor, Virginia Kendall. The declaration of covenants, conditions and restrictions (CC&R's)expressly prohibited the installation of "any permanent structure other than irrigation systems" on the easement. After he received permission from Woodridge's architectural committee, Nielsen constructed a wooden deck that encroached upon the easement. The association's board of directors later found that the architectural committee had erroneously approved the construction of the deck, ordered Nielsen to remove the portion of the deck that encroached upon the easement, and offered to pay for the removal cost.1 Nielsen refused the offer. The association brought this action for injunctive and declaratory relief against him, seeking an order requiring him to remove the encroaching portion of the deck.
The court granted the association's motion for summary judgment andits motion for attorney fees. After the court issued an order granting Nielsen's motion to expunge the lis pendens, the association petitioned for writ relief (Woodridge Escondido Property Owners Assn. v. Superior Court/Nielsen (Apr. 26, 2004, D043860) [nonpub. opn.]). This court granted the petition and issued a peremptory writ directing the court to vacate that order and enter an order denying Nielsen's motion. Nielsen appeals the summary judgment and the order granting the association's motion for attorney fees. Nielsen also purports to appeal from the order granting his motion to expunge the lis pendens, and he requests "review" of this court's writ decision. For reasons we shall explain, we affirm the summary judgment and award of attorney fees in favor of the association and conclude that we have no authority to either reach the merits of Nielsen's purported appeal of the expungement order or review this court's final writ decision. [Full opinion - PDF]
Posted by joewest at 12:49 PM
June 14, 2005
CO: Subdivision can amend covenants to create common interest community
In 1995, a majority of the members of the Evergreen Highlands homeowners association voted to amend the subdivision’s protective covenants. The amendment added a new article to the covenants which: (1) required all lot owners to be members of the association; (2) allowed the association to assess mandatory dues against all lot owners to pay for the maintenance of common areas of the subdivision; and (3) granted the association the power to impose liens on those lots whose owners failed to pay their assessments. Respondent, a lot owner in the subdivision since 1986, filed suit challenging the validity of the 1995 amendment.
The trial court held that the 1995 amendment was valid and binding on all lot owners in the subdivision. The court of appeals reversed, holding that the modification clause of the original Evergreen Highlands protective covenants allowed only for the modification of existing covenants, but not for the addition of a wholly new covenant.
The supreme court now reverses and remands. The court holds that the addition of the new article to the covenants falls within the permissible scope of the modification clause of the original Evergreen Highlands covenants. The court also holds that, even in the absence of an express covenant, the declarations for Evergreen Highlands were sufficient to create a common interest community by implication with the concomitant power to impose mandatory dues on lot owners to pay for the maintenance of common areas of the subdivision. The supreme court accordingly remands the issue to the court of appeals with directions to return it to the trial court for calculation of Petitioner’s damages in a manner consistent with its opinion. (Full Opinion)
Posted by joewest at 10:40 AM