Interchange Drive, LLC v. Nusloch
311 Ga. App. 552
Ga. Ct. App.2011Background
- Interchange Drive purchased Habersham Plantation subdivision property in 2009; lot owners sued for access to common areas and the Active Recreation Area (ARA) asserting easements and rights under Habersham Covenants; Habersham plat (2005) and Habersham Covenants (2005) defined common areas and ARA, with restrictions and maintenance by the Association; Genesis, as declarant, recorded covenants and reserved supplemental declarations; Wachovia foreclosed (2008) on the subdivision property, acquired it subject to Habersham Covenants, and later conveyed to Interchange (2009) subject to those covenants; trial court granted lot owners summary judgment, holding easements and rights in common areas/ARA intact; Interchange appealed challenging whether covenants attached to foreclosed property and whether the ARA properly became part of the common area before foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ARA was properly made a common area under Habersham Covenants | Interchange: ARA not included due to lack of Supplemental Declaration | Lot owners: ARA plainly becomes a Common Area by declaration | ARA became part of Common Area despite wording variance |
| Whether Wachovia’s deeds subjected the property to Habersham Covenants | Wachovia foreclosed before covenants imposed; not bound | Deeds expressly subject to covenants; grantee bound | Deeds bound Wachovia and Interchange to Habersham Covenants |
| Whether Wachovia’s conveyance to Interchange preserved easements for lot owners | Easements extinguished by senior lien and foreclosure | Grantee takes title subject to covenants; easements survive | Habersham Covenants remained applicable; easements preserved |
| Whether recordation and references to plats ratified easements | Quitclaims referencing plat acknowledged easements | Acceptance of deed subjects grantee to covenants | References to plat ratified and subject to covenants |
Key Cases Cited
- Springmont Homeowners Assn. v. Barber, 221 Ga.App. 713 (1996) (foreclosure/deed subject to covenants clarity questioned)
- Hayes v. Lakeside Village Owners Assn., 282 Ga.App. 866 (2006) (lot owners bound by covenants when title conveyed subject to covenants)
- Bowman v. Walnut Mountain Property Owners Assn., 251 Ga.App. 91 (2001) (covenants bind a grantee who takes title subject to them)
- Rhodes v. Anchor Rode Condo. Homeowner's Assn., 270 Ga. 139 (1998) (property subject to security deed remains subject unless released)