concurring specially.
I concur fully in Divisions 1-4 of the majority opinion, and with the judgment in Division 5.1 write separately because I disagree with the conclusion reached in Division 5 of the majority opinion that Marino v. Clary Lakes Homeowners Assn., 322 Ga. App. 839 (747 SE2d 31) (2013), and Black Island Homeowners Assn. v. Marra, 263 Ga. App. 559 (588 SE2d 250) (2003), should be overruled. As explained below, neither of those two cases affects the outcome in the present case, and thus we need not reach the question whether they should be overruled. Furthermore, both cases were correctly decided and appropriately apply a “continuing violation” rule where the right of action is based on a restrictive covenant violation caused by separate and distinct repetitive acts.
“All actions for breach of any covenant restricting lands to certain uses shall be brought within two years after the right of action accrues, excepting violations for failure to pay assessments or fees[.]” OCGA § 9-3-29 (a). The right of action accrues “immediately upon the violation of the covenant restricting lands to certain uses.” OCGA § 9-3-29 (c). Construing these provisions, we have held that “a right of action based on a covenant violation caused by a permanent fixture accrues when the violation first results.” Marino, 322 Ga. App. at 843 *464(1), quoting Black Island, 263 Ga. App. at 561 (1) (b). See Helmley v. Liberty County, 242 Ga. App. 881, 883-884 (2) (531 SE2d 756) (2000) (right of action accrued when business was constructed on property). Significantly, however, we have further held that a different rule applies where the right of action is based on a covenant violation caused by distinct and separate repetitive acts rather than by a permanent fixture; in that scenario, the right of action “accrues each time the distinct and separate act that constitutes an alleged breach occurs.” (Citation and punctuation omitted.) Marino, 322 Ga. App. at 843 (1), quoting 2 Pindar’s Ga. Real Estate Law & Procedure § 19:193, n. 1 (7th ed.) (updated April 2014). See id. at 844 (1) (each act of the defendants “parking their vehicles on their property other than in their garage, which was being used for storage, was a separate and distinct act that gave rise to a new cause of action for an alleged violation of the [restrictive covenant in question]”); Black Island, 263 Ga. App. at 561 (1) (b) (each act of the defendant mowing grass of undeveloped property in violation of restrictive covenant was “a distinct, separate act that constitute[d] an alleged breach each time it occur[red]”).
In this case, the uncontroverted record shows that the counterclaim for injunctive relief asserted by the Outback Property Owners Association, Inc. (the “Association”) is based on restrictive covenant violations caused by a permanent fixture, namely, the roadway constructed across Lot 10 to service the properties owned by the limited liability companies connected to John Longino, including S-D RIRA, LLC (“RIRA”). See OCGA § 44-1-6 (a) (“Anything which is intended to remain permanently in its place even if it is not actually attached to the land is a fixture which constitutes a part of the realty and passes with it.”). Cf. Trust Co. Bank v. Huckabee Auto Co., 58 BR 826, 830 (Bankr. M.D. Ga. 1986) (ramps providing access for automobiles constituted fixtures). But for the roadway constructed to service the properties, there would be no covenant violations. Indeed, the Association in its appellee brief directly links the covenant violations occurring in this case with “the construction of a roadway across Lot 10” that “will be used or is being used to service [RIRA’s] property.” Accordingly, under our existing precedent, the Association’s right to seek injunctive relief accrued in May 2006, when the permanent fixture, the roadway, was constructed.
It follows that the Association’s counterclaim for injunctive relief against PPP Properties Development, LLC (“Properties Development”), which was filed in September 2009, was barred by the two-year statute of limitation imposed by OCGA § 9-3-29 (a), unless the limitation period was tolled. Thus, I agree with the majority’s ultimate conclusion in Division 5 (a) that the case must be remanded *465to the trial court for a determination whether the running of the statute of limitation on the Association’s counterclaim for injunctive relief against Properties Development was subject to tolling. See OCGA § 9-3-96 (“If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.”).21
Because this case involves covenant violations caused by a permanent fixture, the rule adopted in Black Island and applied in Marino for restrictive covenant violations caused by separate and distinct repetitive acts has no bearing on this appeal. Nevertheless, despite the fact that neither case affects the outcome here, the majority would overrule them. The majority contends that those two cases erroneously apply a “continuing tort” or “continuing violation” theory to claims seeking the enforcement of restrictive covenants because that theory is allegedly inconsistent with the plain language of OCGA § 9-3-29 (c) and has only been applied in nuisance cases. I disagree with these contentions and believe that Black Island and Marino remain good law and should not be overruled.
As an initial matter, the language of OCGA § 9-3-29 (c) does not foreclose applying a continuing violation theory when restrictive covenants are violated by separate and distinct repetitive acts. While OCGA § 9-3-29 (c) provides that a right of action accrues immediately upon the violation of a restrictive covenant, the statute is silent as to when or if a new right of action can ever accrue based on the specific factual circumstances. Hence, determining when an action is time-barred under OCGA § 9-3-29 (c) is not a matter of simply applying the plain language of the statute.
Given that the statute itself does not address the issue, it was appropriate for this Court in Black Island to determine whether a continuing violation theory could be applied in restrictive covenant cases. The general rule is that the continuing violation theory does not apply to cases involving only property damage. See Corporation of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (2) (368 SE2d 732) (1988). But as the majority indicates, an exception to the rule applies in cases involving a continuing nuisance. See Shaheen v. G & G Corp., 230 Ga. 646, 648 (2) (198 SE2d 853) (1973). An exception also applies in cases of continuing trespass. See City of Chamblee v. *466Maxwell, 264 Ga. 635, 636 (452 SE2d 488) (1994); Savage v. E. R. Snell Contractor, 295 Ga. App. 319, 325 (3) (a) (672 SE2d 1) (2008). Furthermore, application of the continuing violation theory has not been restricted to cases sounding in tort. See Willis v. City of Atlanta, 265 Ga. App. 640, 644-645 (2) (595 SE2d 339) (2004) (applying continuing violation theory to claim for back pay based on a municipal ordinance).22
In light of this case law, the question whether a continuing violation theory applies in actions to enforce a restrictive covenant is not black and white. And, in my view, an action to enforce a restrictive covenant running with the land is sufficiently analogous to a nuisance or trespass action to justify applying a continuing violation theory when the facts of the case support it. Other courts have reached a similar conclusion where, as here, the statute imposing the relevant limitations period is silent as to whether a continuing violation theory should apply. See Winn-Dixie Stores v. Dolgencorp, LLC, 746 F3d 1008, 1043 (11th Cir. 2014) (under Florida law, the continuing tort doctrine applies “when restrictive covenants are violated by ongoing, separate acts”); Barker v. Jeremiasen, 676 P2d 1259, 1261 (I) (Colo. App. 1984) (statute of limitation did not bar action because the defendants’ breeding and raising of horses on their property “resulted in repeated and successive breaches of the ... protective covenants which continued until the date of trial”); Vranesevich v. Pearl Craft, 241 P3d 250, 254 (Okla. Ct. App. 2010) (applying continuing tort theory to action to enforce restrictive covenant). Indeed, although outside the context of the statute of limitation, our Supreme Court has referred to a breach of a restrictive covenant as a “continuing breach” that did not occur “at a single point in time.” Prime Bank v. Galler, 263 Ga. 286, 288 (2) (430 SE2d 735) (1993). See also Bounds v. Coventry Green Homeowners’ Assn., 268 Ga. App. 69, 73 (2) (601 SE2d 440) (2004) (“The breach of a restrictive covenant, whether by the homeowner or the homeowners’ association, is a continuing one[.]”). Accordingly, this Court reasonably and *467properly adopted the continuing violation theory for restrictive covenant actions in Black Island and applied it in Marino, and thus neither case should be overruled.23
Lastly, the principle of stare decisis counsels against overruling Black Island and Marino. “As a general rule, American courts adhere to the principle of stare decisis, which directs the courts to stand by their prior decisions,” and “the application of [that principle] is essential to the performance of a well-ordered system of jurisprudence.” (Citations and punctuation omitted.) Smith v. State, 295 Ga. 120, 121 (757 SE2d 865) (2014).
Even those who regard stare decisis with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute. A reinterpretation of a statute after the General Assembly’s implicit acceptance of the original interpretation would constitute a judicial usurpation of the legislative function.
(Citation and punctuation omitted.) Etkind v. Suarez, 271 Ga. 352, 358 (5) (519 SE2d 210) (1999). Black Island construed OCGA § 9-3-29 (c) to permit the application of a continuing violation theory, and that construction of the statute has been in effect for over a decade, during which time the legislature has chosen not to amend the statute. Because homeowners and homeowners’ associations have relied on that construction since that time and “we do not write on a clean slate, stare decisis compels that we follow and apply” Black Island, particularly where, as here, there is no compelling reason for overturning it. Etkind, 271 Ga. at 358 (5).
For these combined reasons, it is unnecessary to overrule Black Island and Marino because neither affects the outcome of the present case, which is based on a covenant violation caused by a permanent fixture. Moreover, both of those cases reasonably concluded that a continuing violation theory can apply in actions involving restrictive covenant violations caused by separate and distinct repetitive acts. Consequently, while I concur in the judgment of Division 5 of the majority’s opinion, I disagree with the reasoning of that division, including the need to overrule any of our settled precedent.
*468I am authorized to state that Chief Judge Phipps, Presiding Judge Ellington, Judge Miller, and Judge McFadden join this special concurrence, and that Presiding Judge Doyle joins to the extent the special concurrence asserts that Marino v. Clary Lakes Homeowners Assn., 322 Ga. App. 839 (747 SE2d 31) (2013), and Black Island Homeowners Assn. v. Marra, 263 Ga. App. 559 (588 SE2d 250) (2003), should not be overruled.
On Motion for Reconsideration.
S-D RIRA, LLC has filed a motion for reconsideration arguing, among other things, that this Court erred when we instructed the trial court to consider on remand whether the applicable statute of limitation was tolled for some period of time. Given the split in votes between the majority opinion and the special concurrence, however, the tolling issue will not be relevant on remand.24
Division 5 of the majority opinion, which advocated overruling Black Island Homeowners Assn. v. Marra, 263 Ga. App. 559 (588 SE2d 250) (2003) and Marino v. Clary Lakes Homeowners Assn., 322 Ga. App. 839 (747 SE2d 31) (2013), received only six votes. The continuing violation theory announced in Black Island and applied in Marino, therefore, remains good law. See OCGA § 15-3-1 (d) (the overruling of any previous decision of the Court requires “the concurrence of a majority”). Additionally, although the special concurrence received six votes, one judge joined the special concurrence only to the extent that the special concurrence found that Black Island and Marino should not be overruled. Thus, there were only five votes for *469the proposition that under the continuing violation theory the use of a road is the equivalent of a property owner erecting a fixture.
Decided November 21, 2014 Reconsideration denied December 16, 2014 John T. Longino, for appellant. John J. Capo, for appellee.Given that the covenant violation which the Association seeks to enjoin is the use of the Lot 10 road to access adjoining property, then under Black Island and Marino a violation of the covenants occurs, and the statute of limitation begins to run anew, every time an adjoining property owner utilizes the Lot 10 road for the purpose of accessing his property. See Marino, 322 Ga. App. at 843-844 (1) (holding that “each act of the [homeowners] parking their vehicles on their property other than in their garage, which was being used for storage, was a separate and distinct act that gave rise to a new cause of action for an alleged violation of the” covenant that prohibited such conduct); Black Island, 263 Ga. App. at 561 (1) (b) (each instance of the property owner’s mowing his undeveloped property in violation of a restrictive covenant was a “distinct, separate act that constitutes an alleged breach each time it occurs”). Accordingly, the trial court need not consider on remand the issue of tolling.
Motion for reconsideration denied.
I also agree with the majority’s conclusion in Division 5 (b) that it is unclear whether RIRA, which is not a party to the restrictive covenants in question, is entitled to assert the statute of limitation found in OCGA § 9-3-29 (a) as a defense to the Association’s claim for injunctive relief asserted against it. Hence, like the majority, I believe that remand is appropriate for the trial court to make a determination on this issue.
Statutes of limitation serve two purposes: “One is evidentiary — to reduce the error rate in legal proceedings by barring litigation over claims relating to the distant past. The other is repose — to give people the assurance that after a fixed time they can go about their business without fear of having their liberty or property taken through the legal process.” Taylor v. Meirick, 712 F2d 1112, 1119 (7th Cir. 1983). Neither purpose is undermined by the continuing violation theory. When the challenged violation is a continuing one, the evidence remains fresh, and “the staleness concern disappears.” Havens Realty Corp. v. Coleman, 455 U. S. 363, 380 (102 SCt 1114, 71 LE2d 214) (1982). See Taylor, 712 F2d at 1119. And any uncertainty that the defendant may have as to whether he will be sued will be confined to the limitations period running from the time the final act of the alleged unlawful course of conduct takes place. See Taylor, 712 F2d at 1119.
As the majority points out, in Helmley, 242 Ga. App. at 884 (2), this Court declined to apply a continuing violation theory in a restrictive covenant action and found that the action was time-barred. But, as Black Island and Marino both indicate, Helmley is clearly distinguishable because it involved the violation of a restrictive covenant caused by a permanent fixture. See Marino, 322 Ga. App. at 843 (1); Black Island, 263 Ga. App. at 561 (1) (b).
The Georgia Constitution provides that, “[i]n the event of an equal division of the Judges [of the Court of Appeals] when sitting as a body, the case shall be immediately transmitted to the Supreme Court.” Ga. Const, of 1983, Art. VI, Sec. V, Par. V. Here, although the majority and the special concurrence received six votes each, the whole court agreed on all issues other than what rule should be applied to determine the running of the statute of limitation. The whole court further agreed, however, that factual questions existed as to when the statute began to run and whether it should be tolled for any period of time. Both the majority and the special concurrence, therefore, concluded that the statute of limitation issue should he remanded to the trial court. Thus, because there was no division as to how the case should be disposed of, the case was not subject to automatic transfer to the Supreme Court of Georgia under the equal division rule. See Rodriguez v. State, 295 Ga. 362, 364 (1) (761 SE2d 19) (2014) (“when the full bench of the Court of Appeals has considered every claim of error that might cause the judgment of the trial court to be set aside, and when the full bench is equally divided about whether that judgment must he set aside, there is an ‘equal division’ ”); Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730, 731, n. 4 (514 SE2d 201) (1999) (noting that no equal division exists where a majority of judges of the Court of Appeals find that the judgment of the trial court must be reversed upon some ground, even though the judges are equally split as to the grounds for reversal).