2020 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

1. 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.
2. 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.
3. 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.
4. 1. 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.
   2. 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.
   3. 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.
   4. 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.
   5. 1. 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:
         1. Incorporate or maintain an annual registration pursuant to the terms of the covenants;
         2. Cause the board of directors to be duly appointed and the officers to be elected pursuant to the terms of the covenants;
         3. 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;
         4. Call meetings of the members of the entity in accordance with the provisions of the covenants;
         5. 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
         6. Pay property taxes on common property in the planned subdivision for two or more years.
      2. 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.
5. 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).

- 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.

- 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).

ANALYSIS

• General Consideration
• Covenants Running with Land
• Covenants Not Running with Land
• Zoning

O.C.G.A. § 44-5-60 deals with restrictions and not easements. Hendley v. Overstreet, 253 Ga. 136, 318 S.E.2d 54 (1984).

O.C.G.A. § 44-5-60(b) only applied to land in cities and counties subject to zoning laws, and neither § 44-5-60(b) nor any other law limited the enforceability of covenants to only a single 20-year term or precluded their eventual renewal upon the expiration of that period. When covenants expressly provided for automatic renewal at successive 10-year intervals unless two-thirds of the residents objected, the question of retroactive application did not arise, and since the covenants authorized an association to sanction a resident for covenant violations, a trial court did not err in refusing to grant an interlocutory injunction prohibiting the association from enforcing the sanction. Sweeney v. Landings Ass'n, 277 Ga. 761, 595 S.E.2d 74 (2004).

O.C.G.A. §§ 9-3-29 and 44-5-30 limit the enforceability of restrictive covenants and hence are inapplicable to a cause of action which is based upon the alleged existence of easements. Estate of Seamans v. True, 247 Ga. 721, 279 S.E.2d 447 (1981).

Scope of subsection (b) of O.C.G.A. § 44-5-60 applies to "use restrictions" and, further, to "building restrictions," as those appear in restrictive covenants, because both restrictive covenants and zoning ordinances contain building and use restrictions. Matera Investors, Inc. v. Sunset Lake Fishing & Hunting Club, 696 F. Supp. 1510 (M.D. Ga. 1988).

- Grantor's reserved rights or interest in land were not rendered unenforceable since the deed contained no language stating that the fee owner had to use the land for any particular uses, but rather stated that the fee owner could put the owner's land to any use whatsoever as long as the use did not violate the grantor's rights under the deed. Matera Investors, Inc. v. Sunset Lake Fishing & Hunting Club, 696 F. Supp. 1510 (M.D. Ga. 1988).

The 1993 amendment of subsection (d) of O.C.G.A. § 44-5-60 providing an automatic continuation of covenants could not be applied retrospectively. Appalachee Enters., Inc. v. Walker, 266 Ga. 35, 463 S.E.2d 896 (1995), overruled on other grounds, Bickford v. Yancey Dev. Co., 276 Ga. 814, 585 S.E.2d 78 (2003).

Covenant on the development corporation's property dating from 1977 requiring a minimum lot size of two acres was not renewed by O.C.G.A. § 44-5-60(d)(1), which was enacted in 1993, because § 44-5-60(d)(1) did not apply retroactively; as a result, the covenant expired in 1997. Bickford v. Yancey Dev. Co., 258 Ga. App. 371, 574 S.E.2d 349 (2002), aff'd, 276 Ga. 814, 585 S.E.2d 78 (2003).

The 1993 revision to O.C.G.A. § 44-5-60(d)(1), providing for the automatic 20-year renewal of restrictive covenants affecting subdivisions containing 15 or more plots, applies only to those restrictive covenants that are established under law after July 1, 1993; as for all restrictive covenants established before July 1, 1993, those covenants are governed by O.C.G.A. § 44-5-60(b), and thus are deemed unenforceable after a period of 20 years. Bickford v. Yancey Dev. Co., 276 Ga. 814, 585 S.E.2d 78 (2003).

- There is no abridgment of constitutional rights when statute is applied to covenants it postdates. House v. James, 232 Ga. 443, 207 S.E.2d 201 (1974) (see O.C.G.A. § 44-5-60).

Cited in Rowan v. Newbern, 32 Ga. App. 363, 123 S.E. 148 (1924); Warlick v. Rome Loan & Fin. Co., 194 Ga. 419, 22 S.E.2d 61 (1942); Delray, Inc. v. Reddick, 194 Ga. 676, 22 S.E.2d 599 (1942); Davies v. Curry, 230 Ga. 190, 196 S.E.2d 382 (1973); Home Mart Bldg. Ctrs., Inc. v. Wallace, 144 Ga. App. 19, 240 S.E.2d 582 (1977); Antill v. Sigman, 240 Ga. 511, 241 S.E.2d 254 (1978); Rolleston v. Sea Island Properties, Inc., 254 Ga. 183, 327 S.E.2d 489 (1985); Moreland v. Henson, 256 Ga. 685, 353 S.E.2d 181 (1987); Benton v. Gaudry, 230 Ga. App. 373, 496 S.E.2d 507 (1998); Arbor Station Homeowners Servs. v. Dorman, 255 Ga. App. 866, 567 S.E.2d 102 (2002); CPI Phipps, LLC v. 100 Park Ave. Partners, L.P., 288 Ga. App. 614, 654 S.E.2d 690 (2007); Atlanta Development Authority v. Clark Atlanta University, Inc., 298 Ga. 575, 784 S.E.2d 353 (2016); Dockery v. Haedong Indus. Co., 355 Ga. App. 436, 844 S.E.2d 496 (2020).

Covenants Running with Land

1. Creation

Owner of land, selling or leasing the land, may insist upon such covenants as the owner pleases, touching the use and mode of enjoyment of the land; the owner has a right to define the injury personally, and the party contracting with the owner must abide by the definition. Smith v. Pindar Real Estate Co., 187 Ga. 229, 200 S.E. 131 (1938).

- If the owner of realty sells a portion thereof, imposing on a vendee restrictions relating to the use of the estate conveyed, a restriction is imposed for the benefit of the land retained, and an implied inhibition is created as to the use of the portion of the land conveyed, thus creating a covenant running with the land. O'Neill v. Myers, 148 Ga. App. 749, 252 S.E.2d 638 (1979).

- To constitute a covenant running with the land, there must first be an interest or estate therein granted, the covenant must relate to the interest or estate granted, and the act to be done must concern the interest created or title conveyed. If the covenant is of a collateral nature to the land, and is incapable in law of attaching to the interest or estate granted, it is a personal obligation, and will not bind or pass to assignees, even if the assignees are expressly named. Johnson v. Myers, 226 Ga. 23, 172 S.E.2d 421 (1970).

- Purchaser of a 10-acre lot in a subdivision was bound by restrictive covenants governing the cutting of trees and dividing of lots in the subdivision because the covenants had never been abolished and provided for their automatic renewal; O.C.G.A. § 44-5-60 did not prohibit renewal and render the covenants unenforceable. Gilbert v. Canterbury Farms, LLC, 346 Ga. App. 804, 815 S.E.2d 303 (2018).

2. Effect

Covenant binds subsequent owner with or without notice.

- When there is a covenant running with the land, then the covenant binds any subsequent owner thereof with or without notice, for the reason that the subsequent owner takes no greater title than the predecessor had to convey. O'Neill v. Myers, 148 Ga. App. 749, 252 S.E.2d 638 (1979).

On appeal from an order in a declaratory judgment action, the trial court did not err in finding, upon cross-motions for summary judgment, that restrictive covenants which had been made applicable to the subdivision over 20 years earlier remained in effect and prohibited a buyer from re-subdividing certain tracts into residential lots with less than five acres, but did err in ruling that interpretation of the covenants was a legal matter for the court, rather than a factual matter for the jury. Britt v. Albright, 282 Ga. App. 206, 638 S.E.2d 372 (2006), cert. denied, 2007 Ga. LEXIS 199 (Ga. 2007).

- Plaintiffs were entitled to the benefit of the express building line restrictions in the deeds in the defendant's chain of title, as well as the restrictions indicated by a dotted line on the plat mentioned in the deeds, and the defendants were charged with notice and bound by such restrictions. Jones v. Lanier Dev. Co., 190 Ga. 887, 11 S.E.2d 11 (1940).

- When a general warranty given by grantor and the grantor's cotenant to grantee did not expressly prohibit its transmission to subsequent owners, the subsequent grantee could sue the grantor and the grantor's cotenant for the breach of their general warranty. Northside Title & Abstract Co. v. Simmons, 200 Ga. App. 892, 409 S.E.2d 885, cert. denied, 200 Ga. App. 896, 409 S.E.2d 885 (1991).

Restrictions on the use of real property will not be enlarged or extended by construction, and any doubt will be construed in favor of the grantee; when it is sought to restrict one in the use of one's own private property for any lawful purpose, the ground for such interference must be clear and indubitable. England v. Atkinson, 196 Ga. 181, 26 S.E.2d 431 (1943).

Covenant plainly expressed cannot be broadened for the purchaser by parol proof of such an intention on the part of the covenantor. Miller v. Desverges, 75 Ga. 407 (1885).

- Restrictive covenant, established in 1977, expired in 1997, and was no longer enforceable against any property owner in the subdivision; O.C.G.A. § 44-5-60(d)(1), the covenant automatic renewal law, did not apply retroactively to extend the covenant. Bickford v. Yancey Dev. Co., 276 Ga. 814, 585 S.E.2d 78 (2003).

- In a HOA's action against homeowners for violation of a garage storage covenant, in which it was determined that the owners were not bound by the covenant under O.C.G.A. § 44-5-60(d)(4) or O.C.G.A. § 44-2-226(a), and the HOA dismissed the HOA's remaining claim, the owners were the prevailing party entitled to attorney fees under the declaration; however, the trial court did not err in denying attorney fees under O.C.G.A. § 9-15-14(b). Marino v. Clary Lakes Homeowners Ass'n, 331 Ga. App. 204, 770 S.E.2d 289 (2015).

4. Procedure

Subsequent purchaser of property benefited by mutual covenant entitled to enforce restriction.

- When property is adjoined by a vacant lot and benefits by a mutual covenant to keep the vacant lot unenclosed and unimproved, subsequent purchasers of the property, who purchase by warranty deed conveying the property "with all appurtenances thereto," have the right to enforce in equity the restriction against enclosing or improving the vacant lot. Godfrey v. Huson, 180 Ga. 483, 179 S.E. 114 (1935).

- When A and B make mutual warranty deeds to each other to separate pieces of property after the lien for taxes for the year has become fixed, a subsequent grantee from either may, under the warranty so made, recover the amount of any taxes such purchaser may have been forced to pay. An agreement that each should pay the taxes on their respective tracts is but an agreement to do that which they are already bound to do. McRae v. Sewell, 47 Ga. App. 290, 170 S.E. 315 (1933).

- Purchaser may maintain an action for breach of warranty against any grantor of the premises who is the purchaser's privy in estate, and the action may be maintained as well when a paramount outstanding title prevents one from obtaining possession, as when an ouster results from the necessity of yielding possession in response to such a paramount title. Quitman Furn. & Hdwe. Co. v. Rountree, 14 Ga. App. 382, 80 S.E. 904 (1914). See also Smith v. Williams, 117 Ga. 782, 45 S.E. 394, 97 Am. St. R. 220 (1903); Croom v. Allen, 145 Ga. 347, 89 S.E. 199 (1916).

An unrestricted express warranty of title being a covenant running with the land, a purchaser may maintain an action thereon against any prior grantor making such a warranty, if one is a privy in estate. McEntyre v. Merritt, 49 Ga. App. 416, 175 S.E. 661 (1934).

- In an action for damages on account of a deficiency in acreage brought against a defendant who, on the date the property was conveyed to the plaintiff, had conveyed the property by warranty deed to the person conveying to the plaintiff, the general warranty of title in the deed executed by the defendant was a covenant running with the land, the benefit of which accrued to the plaintiff, even though the legal title had been taken by the defendant merely as an accommodation to the plaintiff's grantor, since the evidence failed to show that there was any agreement or understanding between the plaintiff and the defendant that the plaintiff was to occupy the status of grantor by taking over the contract made between the plaintiff and the defendant. Long v. Sullivan, 52 Ga. App. 318, 183 S.E. 71 (1935).

When there has been a breach of the warranty of title to land, the last grantee has a right of action against, and may sue the grantee's immediate warrantor, the remote or original warrantor, or any intermediate warrantor, or any or all of them in one action. Smith v. Smith, 129 Ga. App. 618, 200 S.E.2d 504 (1973).

- In bringing an action for breach of the warranty of title, the last grantee has the right to select whom the grantee will name as the defendants, in much the same manner as a plaintiff may select which of the joint tortfeasors the plaintiff will sue, but the right to recover for a breach of warranty cannot exist in an intermediate warrantor and the last warrantee at the same time. Smith v. Smith, 129 Ga. App. 618, 200 S.E.2d 504 (1973).

- Suit for breach of warranty of title to land may be maintained not only against the plaintiff's vendor, but also against the vendor of the latter. Reese v. Manget, 53 Ga. App. 637, 186 S.E. 880 (1936).

- While the right of action passes out of an intermediate warrantor when the warrantor relinquishes title to the land, and into the assignee, nevertheless, if it should occur that the intermediate covenantor is placed under the legal necessity of paying the lien, or mending the breach, and the intermediate covenantor actually does so, the right to recover for the amount paid out is thereby restored to the intermediate covenantor, and to that extent alone the intermediate covenantor is remitted to the intermediary's rights under the intermediary's own warranties from prior grantors, and the intermediate covenantor in turn may recover from them the amounts so paid. Robertson v. Webster, 79 Ga. App. 30, 52 S.E.2d 511 (1949).

- As a general rule, the owner of land in fee has the right to use the land for any lawful purpose. When neither the owner's deed nor any deed in the owner's chain of title contains any restrictions, but restrictions as to the land's use and alienation are sought to be placed thereon, based upon an extraneous agreement by a predecessor in title and by notice to the owner, the restrictions must be established by evidence that is clear and beyond a reasonable doubt. England v. Atkinson, 196 Ga. 181, 26 S.E.2d 431 (1943).

- In the absence of fraud or mistake, parol evidence is generally inadmissible to contradict or vary the effect of an unlimited and unrestricted covenant in a deed generally warranting the title to the conveyed land. Long v. Sullivan, 52 Ga. App. 318, 183 S.E. 71 (1935).

- To warrant relief by an injunction in the case of a covenant restricting erections upon the premises conveyed, it is not essential that the plaintiff should show any actual damage resulting from the breach of covenant of which plaintiff complains, and if a clear breach is shown, equity may interpose its preventive aid regardless of the question of damages, since the covenantee is entitled to the benefit of the covenant. Smith v. Pindar Real Estate Co., 187 Ga. 229, 200 S.E. 131 (1938).

Equity will interfere by injunction to prevent the breach of an express, negative covenant, even though no substantial injury is caused by such a breach, and will also interfere even though the damages, if any, may be recoverable at law. Smith v. Pindar Real Estate Co., 187 Ga. 229, 200 S.E. 131 (1938).

- Covenants that were adopted in 1975 expired in June 1995 after 20 years pursuant to subsection (b) of O.C.G.A. § 44-5-60, and were not automatically renewed under subsection (d) of § 44-5-60. Canterbury Forest Ass'n v. Collins, 243 Ga. App. 425, 532 S.E.2d 736 (2000).

In an agreement by a private water company to provide water to the homes built in a subdivision, because the agreement constituted a restrictive covenant limiting each lot owner's options for obtaining water necessary for the use and enjoyment of his or her property, the terms of the agreement ceased to be enforceable in 2011 as the agreement expired after 20 years when the homeowners failed to renew the covenant as required by a former provision of this statute. Double Branches Ass'n v. Jones, 331 Ga. App. 159, 770 S.E.2d 252 (2015).

Covenant to build a party wall between two adjacent lots runs with each lot. Reidsville & S.E.R.R. v. Baxter, 13 Ga. App. 357, 79 S.E. 187 (1913); Horne v. Macon Tel. Publishing Co., 142 Ga. 489, 83 S.E. 204, 1916B Ann. Cas. 1212 (1914).

- On the issue whether there was an implied restriction, limiting the lots of the defendants to residential purposes, and precluding their building of a theater, there was no error in directing the verdict in their favor since the evidence failed to show such an implied general restriction. Jones v. Lanier Dev. Co., 190 Ga. 887, 11 S.E.2d 11 (1940).

For a discussion of covenants which will run with the land, see Goldberg v. Varner, 72 Ga. App. 673, 34 S.E.2d 722 (1945).

- When landowners, unaware that restrictive covenants had expired, relied on an agreement to extend the covenants and took no action to enact new covenants or otherwise protect their property interests, such forbearance, combined with their continued compliance with and enforcement of the covenants, bound defendant and other landowners personally to comply with the covenants. Canterbury Forest Ass'n v. Collins, 243 Ga. App. 425, 532 S.E.2d 736 (2000).

- Provisions in an easement agreement constituted restrictive covenants because the provisions barred the owner from using any portion of the owners' approximately two-acre property, except for part on which the owners' current building was located, for anything other than a driveway, thoroughfare, or parking lot; those provisions had therefore expired by operation of law, 20 years after creation. Davista Holdings, LLC v. Capital Plaza, Inc., 321 Ga. App. 131, 741 S.E.2d 266 (2013).

- Trial court did not err in granting an owner summary judgment on a home owners association's counterclaims seeking an order requiring the owner to evict tenants and to pay fines for violating its declaration of protective covenants because O.C.G.A. § 44-5-60(d)(4) rendered an amendment to the declaration inapplicable to the owner since it imposed a greater restriction on the owner's use of the land to which the owner did not consent; the amendment, which prohibited the leasing of residences, went beyond a mere restriction on occupancy because it prohibited a specific use of the property, residential leasing, to anyone chosen by the owner, which was specifically within the owner's ownership rights when the property was purchased. Charter Club on the River Home Owners Assoc. v. Walker, 301 Ga. App. 898, 689 S.E.2d 344 (2009), cert. denied, No. S10C0808, 2010 Ga. LEXIS 526 (Ga. 2010).

Statute provides the only means for preventing the rights prescribed from running with the land. Tucker v. McArthur, 103 Ga. 409, 30 S.E. 283 (1898) (see O.C.G.A. § 44-5-60).

If covenant is personal, the covenant binds only original parties and those who assume the covenant's obligation, and upon a conveyance of the land, or a transfer of the lease, as the case may be, the transferee takes free of the obligation of any personal covenant appearing in the deed or lease. Talcott, Inc. v. Roy D. Warren Com., Inc., 120 Ga. App. 544, 171 S.E.2d 907 (1969).

Warranty does not run with an article of personal property sold. Smith v. Williams, 117 Ga. 782, 45 S.E. 394, 97 Am. St. R. 220 (1903).

Zoning

1. Constitutionality

- Statute is not violative of the federal and Georgia Constitutions for the impairment of contracts. Rowland v. Kellos, 236 Ga. 799, 225 S.E.2d 302 (1976) (see O.C.G.A. § 44-5-60).

Broad zoning powers given to counties and municipalities override the state and federal constitutional provisions against the passage of laws impairing the obligation of contracts. Payne v. Borkat, 244 Ga. 615, 261 S.E.2d 393 (1979).

Application of this statute to restrictive covenants in deeds created before the underlying statute was passed, so as to render those covenants unenforceable 20 years after the statute took effect, does not unconstitutionally impair the parties' right to contract. Payne v. Borkat, 244 Ga. 615, 261 S.E.2d 393 (1979) (see O.C.G.A. § 44-5-60).

Statute should apply to both building and use restrictions, illustrated by the fact that both restrictive covenants and zoning ordinances contain building and use restrictions. Payne v. Borkat, 244 Ga. 615, 261 S.E.2d 393 (1979) (see O.C.G.A. § 44-5-60).

- It is necessary in a given case to determine whether a particular restrictive covenant merely prohibits the erection of a building other than a residence (building restriction), or whether the covenant also prohibits the use of that structure for a nonresidential purpose (use restriction). Payne v. Borkat, 244 Ga. 615, 261 S.E.2d 393 (1979).

- This statute, which provides that restrictive covenants are void after the passage of 20 years in municipalities where zoning ordinances are in effect, requires municipalities to provide a reasonable and adequate substitute for covenants to protect the property interests of residents. City of Smyrna v. Parks, 240 Ga. 699, 242 S.E.2d 73 (1978) (see O.C.G.A. § 44-5-60).

3. Retrospective Operation

Section not given retrospective operation.

- Statute does not purport to have effect retrospectively, and the settled rule for the construction of statutes is not to give them a retrospective operation, unless the language so imperatively requires. Smith v. Pindar Real Estate Co., 187 Ga. 229, 200 S.E. 131 (1938) (see O.C.G.A. § 44-5-60).

- Statute, properly construed, was not intended to operate retrospectively, and would not have the effect of terminating a covenant that was already in existence as a valid and binding contract between the parties. Dooley v. Savannah Bank & Trust Co., 199 Ga. 353, 34 S.E.2d 522 (1945) (see O.C.G.A. § 44-5-60).

- Trial court erred in finding subdivision covenants did not renew because, while the original term of the covenants was restricted by the later passage of local zoning laws and O.C.G.A. § 44-5-60, the automatic renewal provision in subsection (d) did not apply to the covenants; furthermore, the covenant provision for automatic renewal for 15-year terms, unless two-thirds of the property owners agreed to terminate or modify the covenants, was not contrary to law or public policy. Turtle Cove Prop. Owners Ass'n v. Jasper County, 255 Ga. App. 560, 566 S.E.2d 368 (2002).

4. Period of Enforcement

Section limits period of enforcing covenants to 20 years.

- This statute does not declare restrictive covenants running for more than 20 years to be void, but limits the period in which the covenants can be enforced to 20 years. McKinnon v. Neugent, 225 Ga. 215, 167 S.E.2d 593 (1969) (see O.C.G.A. § 44-5-60).

- Restrictive covenants which have run more than 20 years within a municipality or county in which zoning laws have been in effect for more than 20 years are rendered unenforceable. House v. James, 232 Ga. 443, 207 S.E.2d 201 (1974).

- Restrictive covenants in existence prior to the 1962 amendment to this statute in those areas of counties for which zoning laws have been adopted are rendered unenforceable beginning 20 years after the enactment of the amendment. Rowland v. Kellos, 236 Ga. 799, 225 S.E.2d 302 (1976) (see O.C.G.A. § 44-5-60).

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.