GA Code § 44-5-60 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 5 - Acquisition and Loss of Property|Article 3 - Covenants and Warranties|§ 44-5-60. Effect of Zoning Laws; Covenants and Scenic Easements for Use of Public; Renewal of Certain Covenants; Costs

  The purchaser of lands obtains with the title, whether 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, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.   Notwithstanding subsection (a) of this Code section, 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, however, that whenever a zoning ordinance, upon its initial enactment by a county or municipality, expressly acknowledges the continuing application of a covenant restricting lands to certain uses within that jurisdiction, any such covenant, if created prior to zoning laws being adopted by that county or municipality, shall continue to be effective in such jurisdiction until the expiration of such covenant in accordance with its terms.   The limitation provided in subsection (b) of this Code section 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; this state 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 such covenants and scenic easements running in favor of or for the benefit of the land so held for the use of the public. Such covenants and scenic easements shall run in perpetuity.     Notwithstanding the limitation provided in subsection (b) of this Code section, covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the period provided for in subsection (b) of this Code section unless terminated as provided in this subsection. 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.   To terminate a covenant as provided in paragraph (1) of this subsection, at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated, which may be incorporated by reference to another recorded document. By signing such document, each such person shall verify that he or she is a record owner of property affected by the covenant. Such document shall be recorded in the office of the clerk of the superior court of the county where the land is located no sooner than but within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document.   No covenant that prohibits the use or ownership of property within the subdivision may discriminate based on race, creed, color, age, sex, or national origin.   Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.     Notwithstanding and prior to the usual expiration of the period of covenants restricting land to certain uses affecting planned subdivisions containing no fewer than 15 individual plots as provided for by this subsection, the right to control any entity formed for the purpose of enforcing such covenants may pass to the subdivision plot owners as provided in this paragraph if such entity fails to do any of the following:   Incorporate or maintain an annual registration pursuant to the terms of the covenants;   Cause the board of directors to be duly appointed and the officers to be elected pursuant to the terms of the covenants;   Maintain and make available to owners, upon written request, a list of the names and business or home addresses of the entity's current directors and officers;   Call meetings of the members of the entity in accordance with the provisions of the covenants;   Prepare an annual operating budget, establish the annual assessment, and distribute such budget and notice of assessment to plot owners in accordance with the provisions of the covenants no later than 30 days after the beginning of the entity's fiscal year; or   Pay property taxes on common property in the planned subdivision for two or more years.     In the event that an entity formed for the purpose of enforcing covenants restricting land to certain uses fails to meet one or more of the obligations of this paragraph, then any plot owner, acting individually or jointly with other plot owners, may send such entity written notice of the failure to comply with such requirements and provide the entity a 30 day opportunity to cure the failure; and such notice shall be sent by certified mail or statutory overnight delivery to the entity's principal office. If the entity fails to cure any or all deficiencies identified in the notice within 30 days of such notice, then any plot owner, acting individually or jointly with other plot owners, shall have standing individually, and not solely through a derivative action, to institute an action in the superior court of the county in which any portion of the entity is located in order to obtain declaratory judgment to grant the plot owner or owners control of the entity by ordering an election and setting the terms thereof, or issuing any other orders appropriate to transfer control of the entity. The superior court shall have authority to hold a hearing and issue a summary ruling on said action at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. No discovery shall be had unless ordered by the court for good cause. In addition, the superior court shall be authorized to issue a summary ruling on the conveyance of any intended common areas or other property in the common interest community to the association or other appropriate entity. If the plot owner or owners prevail in such action, then the superior court shall award to the plot owner or owners all reasonable attorney's fees and costs incurred for the prosecution of such action. This paragraph shall not be the basis for any liability against any party or agent of any party outside of the exclusive remedies provided herein.       To the extent provided in the covenants, the obligation for the payment of assessments and fees arising from covenants shall include the costs of collection, including reasonable attorney's fees actually incurred.    (Orig. Code 1863, § 2661; Code 1868, § 2660; Code 1873, § 2702; Code 1882, § 2702; Civil Code 1895, § 3612; Civil Code 1910, § 4192; Code 1933, § 29-301; Ga. L. 1935, p. 112, § 1; Ga. L. 1962, p. 540, § 1; Ga. L. 1971, p. 814, § 1; Ga. L. 1990, p. 384, § 1; Ga. L. 1991, p. 334, § 1; Ga. L. 1993, p. 782, § 1; Ga. L. 2008, p. 1135, § 2A/HB 422; Ga. L. 2012, p. 692, § 2/HB 728; Ga. L. 2017, p. 352, § 5/SB 46.)    The 2008 amendment,  effective July 1, 2008, added subsection (e).    The 2012 amendment,  effective July 1, 2012, added the proviso at the end of subsection (b).    The 2017 amendment,  effective July 1, 2017, added paragraph (d)(5).   Cross references.   - Time limitations on bringing action for breach of restrictive covenants, § 9-3-29.    Right of purchaser at judicial sale to enforce covenants of warranty running with land which are incorporated into previous title deeds, § 9-13-177.    Right of action by alienee of property for continuance of nuisance for which alienee of property causing nuisance is responsible, § 41-1-5.    Georgia Property Owners' Association Act, §§ 44-3-220 and44-3-234.   Editor's notes.   - Ga. L. 2012, p. 692, § 1/HB 728, not codified by the General Assembly, provides that: "The General Assembly finds that current law, Code Section 44-5-60, relating to covenants running with the land, is vague and is in fact silent as to the treatment of covenants which were created prior to a county or municipality adopting zoning laws. The General Assembly finds that during its 1935 session it provided for covenants running with the land terminating at a point certain when municipalities had adopted zoning laws and that in its 1962 session it further provided for covenants running with the land terminating at a point certain in those areas of counties for which zoning laws had been adopted. However, the General Assembly finds that at no point has this body pronounced how covenants running with the land which were created prior to the existence of zoning laws should be treated, and therefore it is the intent of the General Assembly to clarify and correct the current vagaries in the law."   Law reviews.   - For article discussing options to purchase realty in Georgia, with respect to restrictive covenants, see 8 Ga. St. B.J. 229 (1971). For annual survey on law of real property, see 42 Mercer L. Rev. 389 (1990). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For annual survey on real property, see 65 Mercer L. Rev. 233 (2013). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For annual survey on real property, see 71 Mercer L. Rev. 241 (2019). For note, "Regulation of Artificial Lakes and Recreational Subdivisions in Georgia," recommending methods for future regulation, see 8 Ga. St. B.J. 580 (1972). For note, "Restrictive Covenants: A Need For Reappraisal of the Limitations Period," see 17 Ga. St. B.J. 137 (1981). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 198 (1993). For comment, "Injunction Remedy for Breach of Restrictive Covenants: An Economic Analysis," see 45 Mercer L. Rev. 543 (1993).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Covenants Running with Land   Covenants Not Running with Land   Zoning    OPINIONS OF THE ATTORNEY GENERAL    Constructive delivery of a warranty deed may be effected by delivery to an escrow agent within 120 days after the execution of the sales contract, provided all of the following elements are present: (1) the escrow agent must be the agent of both the seller and the buyer, not just that of the seller; (2) the seller must release all control over the warranty deed when the seller delivers the deed to the escrow agent; (3) the escrow agent must be instructed to deliver the warranty deed to the buyer on the happening of a specific future event involving monetary consideration; (4) the escrow agent must be able to enforce the covenants and warranties found in former Code 1933, § 29-301 (see O.C.G.A. § 44-5-60) on behalf of the buyer; and (5) the real estate transaction must be properly recorded to put the world on notice of the buyer's equitable interest in the realty. 1974 Op. Att'y Gen. No. U74-17.   RESEARCH REFERENCES   Am. Jur. 2d.   - 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, § 28 et seq. 23 Am. Jur. 2d, Deeds, § 237.   C.J.S.   - 21 C.J.S., Covenants, § 73 et seq.   ALR.    - Unfounded outstanding claims to or against real property as breach of covenants of deed, 5 A.L.R. 1084.    Outstanding title or claim in grantee as breach of covenants in deed, 10 A.L.R. 441.    Validity and effect of condition of dedication that remaining property shall not be subject to assessments for improvements, 16 A.L.R. 499; 37 A.L.R. 1357.    Record of deed or contract for conveyance of one parcel with covenant or easement affecting another parcel owned by grantor constructive notice to subsequent purchaser or encumbrancer of latter parcel, 16 A.L.R. 1013.    Equitable or incipient easement as breach of covenant against encumbrances, 16 A.L.R. 1066.    Reservation in grant of land of right to hunt and fish with like right to the grantee, as limiting the right of the grantee actual owners of the land, 32 A.L.R. 1533.    Affirmative covenants as running with land, 41 A.L.R. 1363; 102 A.L.R. 781; 118 A.L.R. 982; 68 A.L.R.2d 1022.    Encumbrance undischarged and unenforced as affecting rights and damages under a covenant against encumbrances, 44 A.L.R. 410.    Breach of covenant which does not run with the land as affecting right of remote grantee to recover under separate covenant that does, 45 A.L.R. 513.    Acquiescence by purchaser of lot in restricted district in violations of restrictions as to some lots as waiver of right to insist upon it as to others, 46 A.L.R. 372; 85 A.L.R. 936.    Reservation by grantor of the right to require payment for existing party wall when used, 52 A.L.R. 494.    Garage, or filling station, as breach of restrictive covenants, 54 A.L.R. 659; 99 A.L.R. 541.    Change of neighborhood in restricted district as affecting enforcement of restrictive covenant, 54 A.L.R. 812; 4 A.L.R.2d 1111.    Restrictions on use of real property, or remedies in respect of them, as affected by zoning law, 54 A.L.R. 843.    Part of structure that must be beyond line to amount to violation of building-line restriction, 55 A.L.R. 332; 172 A.L.R. 1324.    Nature of conveyance or covenants which will create estoppel to assert after-acquired title or interest in real property, 58 A.L.R. 345; 144 A.L.R. 554.    Encroachment of building upon adjoining property or street as breach of covenant in deed of property on which building is located, 60 A.L.R. 234.    Structure intended as an outbuilding, but temporarily used as a residence, as breach of restrictive covenant respecting character or cost of residence, 60 A.L.R. 253.    Express covenant restricting property conveyed as raising a corresponding implied covenant as to property retained by the grantor, 60 A.L.R. 1216; 144 A.L.R. 916.    Easement as breach of covenant against encumbrances, 64 A.L.R. 1479.    Right of one not otherwise damaged by violation of restrictive covenant to relief in equity or at law upon theory restriction reduced price received for property affected, 66 A.L.R. 1324.    Rights in ditch company as appurtenance of land irrigated, 70 A.L.R. 1008.    Change of conditions subsequent to judgment enforcing restrictive covenant, 76 A.L.R. 1358.    Covenants in oil and gas lease as running with the land, 79 A.L.R. 496.    What is a "manufacturing" business or enterprise within covenant restricting the use of real property, 81 A.L.R. 1047.    Use of premises for physical treatment or other personal service as violation of covenant against use of property for "business" purposes, 97 A.L.R. 624.    Personal liability of covenantor for breach of restrictive covenant by grantee of property, 98 A.L.R. 779.    Measure of damages for breach of covenant of title in conveyance or mortgage of real property, 100 A.L.R. 1194.    Character as a conditional limitation or condition subsequent, or as a covenant, of provision or recital in deed a purpose for which land is to be used, as affected by fact that was voluntary or for a merely nominal consideration, 116 A.L.R. 76.    Restrictions on use of real property imposed by deed or plat as affected by antecedent mortgage or other lien upon the property or release from or enforcement thereof, 119 A.L.R. 1117.    Validity and effect of reservation in deed of the right to proceeds, or part of the proceeds, of a future sale or condemnation of the property or part thereof, 123 A.L.R. 1474.    Construction and application of restrictive covenants relating specifically to schools, 124 A.L.R. 448.    Lodging or boardinghouse conducted as a business, or taking roomers or boarders as incidental to principal use of premises a home, as within prohibition of zoning statute or ordinance or restrictive covenant, 124 A.L.R. 1011.    "Tourist home" or tourist camp as violation of restrictive covenant as to use of real property, 127 A.L.R. 853.    Use of cemetery grounds for purposes other than interment, 130 A.L.R. 130.    Outstanding right of dower as breach of covenant of title or against encumbrances in deed or mortgage of real estate, 141 A.L.R. 482.    Provisions of deed restricting type of buildings or other use of property, as covenant or condition, 142 A.L.R. 197.    Building restrictions, by covenant or condition in deed or by zoning regulation, as applied to religious groups, 148 A.L.R. 367.    Benefit of provision in deed which limits or qualifies grant or reservation of mineral rights, as passing to subsequent grant or encumbrancer of land, upon the theory that it is a covenant running with the land, or upon the ground that it creates an interest in the land and passes as such, 151 A.L.R. 818.    Restrictive covenants as applicable to land itself apart from buildings, 155 A.L.R. 528.    Covenant restricting "erection," "construction," etc., as including limitation on use structure, 155 A.L.R. 1007.    Provision of building restriction which permits garage or other outbuilding as applicable to lot on which there is no other building, 162 A.L.R. 1098.    What amounts to constructive eviction which will support action for breach of covenant of warranty or for quiet enjoyment, 172 A.L.R. 18.    Computation of number or percentage of owners signing restrictive agreement affecting real property, 173 A.L.R. 316.    Construction and application of covenant restricting use of property to "residence" or "residential purposes", 175 A.L.R. 1191.   Change of neighborhood in restricted district as affecting restrictive covenant; decisions since 1927, 4 A.L.R.2d 1111.   Continued value of restrictive covenant to the dominant owner in protection of his property from competition as basis for its enforcement notwithstanding changes of neighborhood conditions, 2 A.L.R.2d 601.   Restrictive covenants, conditions, or agreements in respect of real property discriminating against persons on account of race, color, or religion, 3 A.L.R.2d 466.   Omission from deed of restrictive covenant imposed by general plan of subdivision, 4 A.L.R.2d 1364.   Oral agreement restricting use of real property as within statute of frauds, 5 A.L.R.2d 1316.   Use of property by college fraternity or sorority as violation of restrictive covenant, 7 A.L.R.2d 436.   Garage as part of house with which it is physically connected within zoning regulations or restrictive covenant, 7 A.L.R.2d 593.   Time when statute of limitation starts to run against breach of covenant running with land and requiring affirmative acts by covenantor, 17 A.L.R.2d 1251.   Covenant of lessee to insure as running with the land, 18 A.L.R.2d 1051.   Covenant in conveyance requiring erection of dwelling as prohibiting use of property for business or other nonresidential purpose, 32 A.L.R.2d 1207.   Use of premises for parking place as violation of restrictive covenant, 80 A.L.R.2d 1258.   Covenant in lease to arbitrate, or to submit to appraisal, as running with the leasehold so as to bind assignee, 81 A.L.R.2d 804.   Conveyance "subject to" restrictions set forth in a recorded or other indicated instrument as imposing the restrictions on the land conveyed, 84 A.L.R.2d 780.   Reservation or exception in deed in favor of stranger, 88 A.L.R.2d 1199.   Hospital, sanitarium, home for aged, nursing home, or the like, as violation of restrictive covenant, 94 A.L.R.2d 726.   When statute of limitations starts to run against action for breach of covenant of warranty or of seisin, 95 A.L.R.2d 913.   Validity, construction, and effect of contractual provision regarding future revocation or modification of covenant restricting use of real property, 4 A.L.R.3d 570.   Construction of covenant or condition in conveyance of land relating to "permanent" maintenance of location of building or other structure, 7 A.L.R.3d 650.   Right of owners of parcels into which dominant tenement is or will be divided to use right of way, 10 A.L.R.3d 960.   Validity of provisions for amortization of nonconforming uses, 22 A.L.R.3d 1134.   Covenant restricting use of land, made for purpose of guarding against competition, as running with land, 25 A.L.R.3d 897.   Zoning or other public restrictions on the use of property as affecting rights and remedies of parties to contract for the sale thereof, 39 A.L.R.3d 362.   Validity and construction of restrictive covenant requiring consent to construction on lot, 40 A.L.R.3d 864.   Meaning of terms "city," "town," or the like as employed in restrictive covenants not to compete, 45 A.L.R.3d 1339.   Who may enforce restrictive covenant or agreement as to use of real property, 51 A.L.R.3d 556.   Change of neighborhood as affecting restrictive covenants precluding use of land for multiple dwelling, 53 A.L.R.3d 492.   Erection of condominium as violation of restrictive covenant forbidding erection of apartment houses, 65 A.L.R.3d 1212.   What constitutes a "structure" within restrictive covenant, 75 A.L.R.3d 1095.   Use of property for multiple dwellings as violating restrictive covenant permitting property to be used for residential purposes only, 99 A.L.R.3d 985.   Restrictive covenants as to height of structures or buildings, 1 A.L.R.4th 1021.   Validity, construction, and effect of restrictive covenants as to trees and shrubbery, 13 A.L.R.4th 1346.   Validity of zoning and building regulations restricting mobile homes or trailers to established mobile home or trailer parks, 17 A.L.R.4th 106.   Validity and construction of restrictive covenant prohibiting or governing outside storage or parking of housetrailers, motor homes, campers, vans, and the like, in residential neighborhoods, 32 A.L.R.4th 651.   Zoning: occupation of less than all dwelling units as discontinuance or abandonment of multifamily dwelling nonconforming use, 40 A.L.R.4th 1012.   Restrictive covenant limiting land use to "private residence" or "private residential purposes": interpretation and application, 43 A.L.R.4th 71.   Validity of provisions for amortization of nonconforming uses, 8 A.L.R.5th 391.   Waiver of right to enforce restrictive covenant by failure to object to other violations, 25 A.L.R.5th 123.   Laches or delay in bringing suit as affecting right to enforce restrictive building covenant, 25 A.L.R.5th 233.