The Town Creek Neighborhood Association filed this action against Danielle Hall
To be entitled to summary judgment, the moving party “must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law.” (Citation and punctuation omitted.) Beale v. O’Shea,
The evidence in this case is undisputed and shows that the Association came into existence on September 28, 2006, when the developer
Declarant shall have exclusive authority to appoint and remove directors and officers until the earlier of: (1) seven (7) years after the recording of the Declaration, (2) [the] date as of which one hundred percent (100%) of the Lots shall have been conveyed by the Declarant to Owners other than a Person constituting the Declarant[,] unless Declarant at that time has an unexpired option to add Additional Property, or (3) the surrender in writing by Declarant of the authority to appoint and remove officers and directors of the Association.
After Hall filed her answer, the Association moved for summary judgment; in so doing, it conceded that no board of directors had ever been appointed. It argued, however, that the Declarant was entitled to act as the board of directors for the first seven years of the Association’s existence and therefore that the assessments were legal even in the absence of a board. In support of this argument, the Association relied on the above-quoted language from the Association’s Bylaws, as well as the affidavit of R. C. Shanks, an employee of Declarant who claims to serve as the property manager for the Association. Shanks averred that “[f]rom 2006 through the filing of this [affidavit], the Declarant, as authorized by the Declaration, acted as the Board of Directors,” and that “[i]n new homeowners [’] associations, it is very common for the Declarant to act as the Board of Directors.”
Following a hearing, the court below granted summary judgment in favor of the Association and against Hall, finding that Hall did not dispute that the Declaration of Covenants governing the Association was properly recorded with her title; that those Covenants authorized the imposition of special assessments by the Association’s board of directors; that under the Bylaws of the Association, the Declarant was entitled to appoint the board of directors
Despite the arguments relied upon by both the Association and the trial court, the question in this case is not whether the Declarant had the authority to control the board or whether it is a “common practice,” in situations such as this, for the Declarant to act as and in lieu of the board. Rather, the question is whether, under these circumstances, the covenants permitted the Declarant to forego appointing a board and simply act in place of that board. We find that they do not.
The Declaration of Covenants states that its filing “does not and is not intended to submit the Property to the terms of the Georgia Property Owners’Association Act, OCGA § 44-3-220, et seq.” Accordingly, in construing those Covenants we apply the common law of covenants. See Georgia Jurisprudence, Property, § 6:80; Country Greens Village One Owner’s Assn. v. Meyers,
As noted supra, the Association’s Bylaws, which are made a part of the Covenants, grant the Declarant the power to appoint and remove members of the board of directors for the first seven years of the Association’s existence. Neither the Declaration nor the Bylaws, however, state that the Declarant is not obligated to appoint a board or that the Declarant may act in lieu of the board. Thus, it is clear that the Declaration contemplated the creation of a board of directors, as well as the legal and procedural safeguards the creation of such a board would provide to the property owners. See Saunders v. Thorn Woode Partnership,
Given that no board of directors was ever appointed, there was no body that had the authority to levy the assessments at issue. Under the terms of the Declaration of Covenants, therefore, Hall was not required to pay those assessments. The order of the trial court granting summary judgment against Hall and awarding the Association monetary damages and attorney fees is reversed. On remand, judgment should be entered in favor of Hall on the Association’s complaint. We leave it for the trial court to determine whether Hall is entitled to an award of attorney fees.
Judgment reversed and case remanded with direction.
Notes
The Association also named Jejuan Hall as a co-defendant in this action, hut it subsequently dismissed its claim against Mr. Hall, and he is not a party to this appeal.
The original developer of the property was Bethlehem Road, LLC, which later transferred its rights in and title to the development to Atrias Homes and Communities.
No copy of the Association’s Bylaws appears in the appellate record. We are therefore relying on the language quoted in the trial court’s order and upon which it relied in granting the Association’s motion for summary judgment. The trial court order identifies that language as being Article III, § 2 of the Bylaws. Hall does not dispute the accuracy of this language or the fact that it is found in Article III, § 2 of the Bylaws. The Association declined to file a brief in this case.