Prime Bank v. Galler

Carley, Justice,

dissenting.

“Covenants running with the land must be strictly construed and clearly established. . . .” Columbia Valley Rec. Cntr. v. Massie, 223 Ga. 151, 152 (1) (154 SE2d 215) (1967). In the instant case, the trial court found that a restrictive covenant running with the land had been violated by appellant-defendant’s predecessor in title and a majority of this Court now affirms that finding. It is my opinion, how*290ever, that, when the restrictive covenant is strictly construed, a violation thereof by appellant’s predecessor in title has not been clearly established. Accordingly, I would reverse the judgment of the trial court on the ground that appellee-plaintiffs were entitled to no equitable relief whatsoever and I must, therefore, respectfully dissent to the majority’s mere remand with direction.

Appellees’ sole contention is that the residence on Lot Seven of the Amanda Woods Subdivision is being constructed in violation of the following restrictive covenant:

No building . . . shall be erected, placed or altered on any Lots until the building plans and specifications and a site plan showing the locations of such building . . . have been approved in writing as to conformity and harmony of external design with existing structures in the subdivision ... by an [A]rchitectural [C]ontrol [C]ommittee. . . .

It is undisputed that no written approval from the Architectural Control Committee was ever secured for the residence. However, the restrictive covenant also provides as follows:

In the event the Committee . . . fails to approve or disapprove such design and location within forty-five (45) days after said plans and specifications have been submitted to it, such approval will not be required and this covenant will be deemed to have been fully complied with.

In my opinion, the undisputed evidence in the instant case demands a finding that the design and location of the residence being constructed on Lot Seven of the Amanda Woods Subdivision is not violative of the restrictive covenant, because the Architectural Control Committee failed to act within 45 days after the plans and specifications for that residence had been submitted to it.

The confusion which exists in the instant case arises from the fact that the late Mr. Robert Carpenter, who was appellant’s immediate predecessor in title, and Mr. Killy Kunimoto, who drew up the original architectural plans for the residence, each occupy two different capacities. Carpenter was not only the former owner of Lot Seven. He was also a member of the Architectural Control Committee. Kunimoto is not only the architect who drew up the original plans for the residence. He was likewise a member of the Architectural Control Committee. In his capacity as the former owner of Lot Seven, Carpenter requested that Kunimoto, in his capacity as an architect, draw up plans for the residence. Kunimoto did submit plans for Carpenter’s consideration. However, these original plans were never submitted to Kunimoto and Carpenter in their capacities as members of the *291Architectural Control Committee. They were submitted by Kunimoto, in his capacity as an architect, for approval by Carpenter, in his capacity as the owner of Lot Seven. Obviously, plans cannot be deemed to have been submitted to the Architectural Control Committee unless and until they have first been selected by the owner of the property as the plans for the residence that will actually be constructed. It is undisputed that Carpenter, in his capacity as the owner, did not accept Kunimoto’s original plans for the residence to be constructed on his property. Instead, Carpenter, acting without Kunimoto’s knowledge, had those plans reversed and determined that the residence on his property would be constructed in accordance with those reversed plans. Thus, it is only the reversed plans which were ever approved by the owner and it is only those plans which could ever have been submitted to the Architectural Control Committee. Accordingly, construction of the residence in accordance with the reversed plans would not be in violation of the restrictive covenant if Carpenter and Kunimoto, in their capacities as members of the Architectural Control Committee, failed to approve or disapprove those reversed plans within 45 days after said plans had been submitted to them.

In the 45 days after Carpenter had determined, in his capacity as owner, to construct the residence in accordance with the reversed rather than the original plans, he did not, in his capacity as a member of the Architectural Control Committee, either specifically approve or disapprove the reversed plans for construction on Lot Seven. His actions certainly in no way manifest any disapproval of such plans. To the contrary, he secured a construction loan from appellant and began to build the residence in accordance with the reversed plans. Accordingly, the failure of Carpenter, in his capacity as a member of the Architectural Control Committee, to have given written approval of the reversed plans would demonstrate no violation of the covenant.

The evidence is undisputed that, at some point prior to construction, Kunimoto was presented with a copy of the reversed plans, but it is unclear as to when it was that he first became aware of Carpenter’s intention to build the residence in accordance with the reversed rather than the original plans. Appellees urge that Kunimoto did not have actual knowledge of Carpenter’s intentions more than 45 days prior to the commencement of construction and that the restrictive covenant can never be satisfied if construction was commenced by Carpenter less than 45 days after the reversed plans had been submitted to the Architectural Control Committee. However, once Kunimoto first became aware of the fact that Carpenter intended for the house on Lot Seven to be built in accordance with the reversed plans, Kunimoto could not, in his capacity as a member of the Architectural Control Committee, simply allow construction to proceed and later *292contend that the covenant had not been satisfied by his failure to approve or disapprove the design and location of the residence within 45 days.

Decided June 21, 1993 Reconsideration denied July 15, 1993. Carter & Ansley, Anthony J. McGinley, Kenton J. Coppage, for appellant. McKee & Barge, Patrick W. McKee, for appellees.
“If . . . a party having an interest to prevent an act being done has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license.”

(Emphasis omitted.) Smith v. Hanna Mfg. Co., 68 Ga. App. 475, 487-488 (23 SE2d 552) (1942). Since it is undisputed that Kunimoto did not approve or disapprove the reversed plans within the 45 days following his actual knowledge that the residence was to be constructed in accordance with the reversed plans and that construction of the residence in accordance with those plans was allowed to continue without his objection, the evidence demands a finding that Kunimoto, in his capacity as a member of the Architectural Control Committee, would be estopped to assert a violation of the restrictive covenant.

The covenant runs with the land and appellees can enforce that covenant if it was breached. However, the covenant was breached only if the Architectural Control Committee itself could successfully assert that it had not failed to approve or disapprove the design and location of the residence on Lot Seven within 45 days after the plans and specifications had been submitted to it. Since the evidence demands a finding that the Architectural Control Committee had failed to approve or disapprove the design and location of the residence on Lot Seven within 45 days after the plans and specifications had been submitted to it, the covenant was not breached and appellees are entitled to no equitable relief.

I am authorized to state that Presiding Justice Hunt and Justice Fletcher join in this dissent!