2021 Georgia Code
Title 44 - Property
Chapter 5 - Acquisition and Loss of Property
Article 2 - Conveyances
§ 44-5-39. Binding Effect of Covenants on Grantee Who Accepts Deed

Universal Citation: GA Code § 44-5-39 (2021)

When a grantee accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him.

(Civil Code 1895, § 3600; Civil Code 1910, § 4180; Code 1933, § 29-102; Ga. L. 1967, p. 592, § 1.)

Law reviews.

- For article, "Condominium and Home Owner Associations: Formation and Development," see 24 Emory L.J. 977 (1975). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For comment on Phillips v. Naff, 332 Mich. 389, 52 N.W.2d 158 (1952), see 15 Ga. B.J. 71 (1952).

JUDICIAL DECISIONS

Owner may sell land subject to reservations or restrictions for benefit of adjoining owned property.

- Owner of a fee has the right to sell the owner's land subject to such reservations or restrictions as the owner may see fit to impose, provided the reservations are not contrary to public policy, and such reservations or restrictions create an easement, or servitude in the nature of an easement, upon the land conveyed for the benefit of the adjoining property of which the grantor remains the owner, and a grantee from the former owner who imposes the restriction is entitled to the same remedy for its enforcement as was the grantor. Cawthon v. Anderson, 211 Ga. 77, 84 S.E.2d 66 (1954).

Parties may contract away or extend property rights.

- Two parties may contract away their rights or extend their rights as the parties please regarding the use of real property so long as public policy is not violated. Winslette v. Keeler, 220 Ga. 100, 137 S.E.2d 288 (1964).

Covenant must concern land and grantee must have notice.

- It is only necessary that covenant concern land or use, and that grantee has notice of it for the covenant to be enforceable against the grantee. Reeves v. Comfort, 172 Ga. 331, 157 S.E. 629 (1931).

Obligation must be clearly expressed or clearly implied. Yaughn v. Harper, 151 Ga. 187, 106 S.E. 100 (1921).

When it is plainly stated in the defendant's deed the purposes for which the property could be used, the parties excluded the property from use for any other purpose. Taylor v. Smith, 221 Ga. 55, 142 S.E.2d 918 (1965).

Covenant to maintain subdivision's quality not void.

- Covenant to maintain the high quality of a subdivision is not harmful to the public welfare, nor so vague and indefinite as to be void. Winslette v. Keeler, 220 Ga. 100, 137 S.E.2d 288 (1964).

Purchaser of land is conclusively charged with notice of restrictive agreements or covenants contained in a deed which constitutes one of the muniments of the purchaser's own title, and generally this is true, whether the deed containing such covenants is recorded or not. Reeves v. Comfort, 172 Ga. 331, 157 S.E. 629 (1931).

Compliance with restrictive covenants required.

- Trial court properly entered an injunction against a husband and wife requiring them, as homeowners and members of a neighborhood property owners association, to remove a chain link fence that was not allowed pursuant to the association's covenants, and the association did not waive enforcement, nor did estoppel apply to grant the husband and wife exception from the association's rules. Wright v. Piedmont Prop. Owners Ass'n, 288 Ga. App. 261, 653 S.E.2d 846 (2007).

Buyer of subdivision property was bound by covenants restricting the use and development of certain defined common areas because the lender from whom the buyer purchased the property took a deed under power of sale that recited that the property was subject to the covenants. Under O.C.G.A. § 44-5-39, the lender agreed to be bound by the covenants. Interchange Drive, LLC v. Nusloch, 311 Ga. App. 552, 716 S.E.2d 603 (2011).

Purchaser with benefit of covenant shall bear burden.

- When a covenant is entered into and the covenant is for the benefit of the purchaser, the seller gets an enhanced price for the seller's land, and if seller reserves or requires a benefit for the seller and the seller's assigns, the seller gets present value therefor. In either case, the covenant becomes in effect a part of the estate itself, and whoever takes the estate in one case should have the benefit and in the other should bear the burden. Reeves v. Comfort, 172 Ga. 331, 157 S.E. 629 (1931).

Presumption of full use of easement right-of-way.

- Recorded subdivision plats and deeds to subdivision lots created a legal rebuttable presumption that "reasonably necessary use," "fair," or "reasonable enjoyment" of the easement required the full use of the right-of-way or street as platted and dedicated, and plaintiff-grantee failed to rebut the presumption in an action to enjoin clear-cutting of the right-of-way. Montana v. Blount, 232 Ga. App. 782, 504 S.E.2d 447 (1998).

Grantee succeeds to all of grantor's rights and liabilities.

- When the grantee accepts a warranty deed from the grantor and enters thereunder, the grantee succeeds to all the rights and liabilities of the grantor in regard to the latter's equity in the property. Williams v. Joel, 89 Ga. App. 329, 79 S.E.2d 401 (1953).

When a security deed, and the power of sale therein contained, were assigned by the original grantee to a new grantee with the same formality of execution as to the deed itself, the power of sale therein contained was one which might properly be exercised by the second grantee in the foreclosure proceedings. Williams v. Joel, 89 Ga. App. 329, 79 S.E.2d 401 (1953).

Effect of accord and satisfaction on obligation.

- Accord and satisfaction evidenced by warranty deed wipes out an antecedent pecuniary obligation. Waters v. Lanier, 116 Ga. App. 471, 157 S.E.2d 796 (1967).

Grantee taking property by deed containing agreement to pay debt personally liable.

- Remote grantee of mortgaged property, who takes by a deed in which the grantee agrees to pay a debt, is personally liable to the mortgagee if the intermediate grantor took only subject to the debt and was not personally liable for the debt. Somers v. Avant, 244 Ga. 460, 261 S.E.2d 334 (1979); Carr v. Nodvin, 178 Ga. App. 228, 342 S.E.2d 698 (1986).

Lessee and assigns bound by covenant for payment of rent.

- When a lease for a period of years is duly executed by the lessor with the statutory formalities required for a deed, and the lessee accepts the lease, has it recorded, and enters into possession thereunder, the lessee and the lessee's assigns will be bound by a covenant therein for the payment of a specified sum as monthly rental, even though the lessee did not sign the instrument. Such a lease is not unilateral and void for the reason contended, that the provision for the payment of rent is not binding on the lessee. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351, 180 S.E. 654 (1935).

Subtenant not liable to lessor's assignee for original lessee's nonpayment.

- Subtenant in possession of premises is not liable in an action ex delicto to one to whom the original lessor subsequently sold the property and assigned the original lease, on account of nonpayment of rents, under an alleged "conspiracy" between the subtenant and the original lessee to remain in possession without payment of rents or other compensation. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351, 180 S.E. 654 (1935).

Covenants not destroyed merely because land more valuable under changed conditions.

- Court of equity will not strike down and destroy covenants merely because under the changed condition of a particular subdivision or adjoining subdivisions the lots of land would be more valuable and would yield more taxes to the government if the present owners of the lots in this subdivision could use their land for other than residential purposes. Cawthon v. Anderson, 211 Ga. 77, 84 S.E.2d 66 (1954).

Intention to make covenant severable.

- When intention to make special covenant severable is denoted, such intention renders covenant separate. Davies v. Blasingame, 181 Ga. 128, 181 S.E. 763 (1935).

Breach of covenant which is sole consideration of absolute deed, with covenantor's insolvency authorizes cancellation, although the deed contains no condition on the happening of which the estate is to determine; on principle, the relief would also extend to recovery of possession of the land. Arrington v. Arrington, 189 Ga. 725, 7 S.E.2d 665 (1940).

Condition subsequent, breach of which causes title's forfeiture, not created.

- When a deed did not expressly state a condition that the breach thereof should cause forfeiture of the estate granted, a clause as to providing a home and necessaries of life for the grantor might, by acceptance of the deed and entry of possession thereunder, become binding upon the grantee as a covenant, but the deed did not create a condition subsequent, the breach of which would cause a forfeiture or termination of title conveyed by the deed. Arrington v. Arrington, 189 Ga. 725, 7 S.E.2d 665 (1940).

Period of limitation in breach of covenant action is 20 years.

- When, as under the common law, a grantee accepts a deed and thereby, without the necessity of an entry, becomes bound by the covenants therein, and the instrument is under seal, the period of limitation in an action for a breach of the covenant is 20 years. Motz v. Alropa Corp., 192 Ga. 176, 15 S.E.2d 237 (1941).

Cited in Wadley Lumber Co. v. Lott, 130 Ga. 135, 60 S.E. 836 (1908); Stanley v. Reeves, 149 Ga. 151, 99 S.E. 376 (1919); Renfroe v. Alden, 164 Ga. 77, 137 S.E. 831 (1927); Phillips v. Blackwell, 164 Ga. 856, 139 S.E. 547 (1927); Peebles v. Perkins, 165 Ga. 159, 140 S.E. 360 (1927); Field v. Hargis, 169 Ga. 670, 151 S.E. 379 (1930); Dye v. Dye, 176 Ga. 72, 166 S.E. 861 (1932); Interstate Inv. Co. v. McCullough, 188 Ga. 206, 3 S.E.2d 733 (1939); Austell Bank v. National Bondholders Corp., 188 Ga. 757, 4 S.E.2d 913 (1939); Ramsey v. Kitchen, 192 Ga. 535, 15 S.E.2d 877 (1941); Peppers v. Peppers, 194 Ga. 10, 20 S.E.2d 409 (1942); Grice v. Grice, 197 Ga. 686, 30 S.E.2d 183 (1944); Lawson v. Lewis, 205 Ga. 227, 52 S.E.2d 859 (1949); Moore v. Wells, 212 Ga. 446, 93 S.E.2d 731 (1956); Howard v. Perkins, 229 Ga. 279, 191 S.E.2d 46 (1972); Boxwood Corp. v. Berry, 144 Ga. App. 351, 241 S.E.2d 297 (1977); Antill v. Sigman, 240 Ga. 511, 241 S.E.2d 254 (1978); Flake v. Fulton Nat'l Bank, 146 Ga. App. 40, 245 S.E.2d 330 (1978); Sellers v. Citizens & S. Nat'l Bank, 177 Ga. App. 85, 338 S.E.2d 480 (1985); Argyle Realty Co. v. Cobb County School Dist., 259 Ga. 654, 386 S.E.2d 161 (1989); Southeast Toyota Distribs., Inc. v. Fellton, 212 Ga. App. 23, 440 S.E.2d 708 (1994); Lanier v. Burnette, 245 Ga. App. 566, 538 S.E.2d 476 (2000); Casey v. Wachovia Bank, N.A., 273 Ga. 140, 539 S.E.2d 503 (2000).

RESEARCH REFERENCES

Am. Jur. 2d.

- 23 Am. Jur. 2d, Deeds, § 157 et seq.

C.J.S.

- 26A C.J.S., Deeds, § 198 et seq.

ALR.

- Outstanding title or claim in grantee as breach of covenant in deed, 10 A.L.R. 441.

Effect on validity and character of instrument in form of deed, of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 11 A.L.R. 23; 31 A.L.R.2d 532.

Severance of title or rights to oil and gas in place from title to surface, 29 A.L.R. 586; 146 A.L.R. 880.

Reservation of vendor's lien as preventing severance of estate in mineral from estate in surface by deed otherwise having that effect, 29 A.L.R. 618.

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.

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.

Quantum of estate granted by a deed as affected by covenant, 47 A.L.R. 869.

Continued use of property for burial purposes as a condition subsequent of a conveyance of dedication of land for that purpose, 47 A.L.R. 1174.

Reservation by grantor of the right to require payment for existing party wall when used, 52 A.L.R. 494.

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.

Measure of damages for breach of covenants of title in conveyances or mortgages of real property, 61 A.L.R. 10; 100 A.L.R. 1194.

What is a "manufacturing" business or enterprise within covenant restricting the use of real property, 81 A.L.R. 1047.

Deed as superseding, or merging, provisions of antecedent contract imposing obligations upon the vendor, 84 A.L.R. 1008; 38 A.L.R.2d 1310.

Period of duration of covenant restricting use of real property when not expressly stated, 95 A.L.R. 458.

Fee simple conditional, 114 A.L.R. 602.

Character as a conditional limitation or condition subsequent, or as a covenant, of provision or recital in deed a purchase for which land is to be used, as affected by fact that deed was voluntary or for a merely nominal consideration, 116 A.L.R. 76.

Construction and application of restrictive covenants relating specifically to schools, 124 A.L.R. 448.

"Tourist home" or tourist camp as violation of restrictive covenant as to use of real property, 127 A.L.R. 853.

Character as condition, limitation, covenant, or trust of provision in deed as to purpose for which property is to be used as affected by introduction with word "provided" or its derivatives, 135 A.L.R. 1135.

Delivery of deed as conditioned on obtaining signature of another as grantor, 140 A.L.R. 265.

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.

Validity of reservation of oil and gas or other mineral rights in deed of land, as against objection of repugnancy to the grant, 157 A.L.R. 485.

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.

Easement or servitude or restrictive covenant as affected by sale for taxes, 168 A.L.R. 529.

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.

Validity and effect of deed executed in blank as to name of grantee, 175 A.L.R. 1294.

Change of neighborhood in restricted district as affecting restrictive covenant; decisions since 1927, 4 A.L.R.2d 1111.

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.

Effectiveness of reservation of vendor's crop rights in land contract in absence of such reservation in deed later executed, 8 A.L.R.2d 565.

Estoppel of mortgagee to contest the mortgagor's title, 11 A.L.R.2d 1397.

Church as violation of covenant restricting use of property, 13 A.L.R.2d 1239.

Personal covenant in recorded deed as enforceable against grantee's lessee or successor, 23 A.L.R.2d 520.

Maintenance, use, or grant of right of way over restricted property as violation of restrictive covenant, 25 A.L.R.2d 904.

"Fronting" of corner lot on both streets or on only one, within restrictive covenant, 30 A.L.R.2d 559.

Covenant in conveyance requiring erection of dwelling as prohibiting use of property for business or other nonresidential purpose, 32 A.L.R.2d 1207.

Building side line restrictive covenants, 36 A.L.R.2d 861.

Validity of provision of will or conveyance limiting alienation to certain individuals or those of a limited class, 36 A.L.R.2d 1437.

Deed as superseding or merging provisions of antecedent contract imposing obligations upon the vendor, 38 A.L.R.2d 1310.

Validity of provisions of will or deed prohibiting, penalizing, or requiring marriage to one of a particular religious faith, 50 A.L.R.2d 740.

Deed as imposing upon vendee obligations additional to, or as superseding or merging obligations imposed by, antecedent contract, 52 A.L.R.2d 647.

What constitutes acceptance of deed by grantee, 74 A.L.R.2d 992.

Use of premises for parking place as violation of restrictive covenant, 80 A.L.R.2d 1258.

Construction and effect of restrictive covenant in deed or conveyance specifically prohibiting or limiting the keeping of animals, such as livestock, fowl, etc., on the premises, 89 A.L.R.2d 990.

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.

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.

Covenant in deed restricting material to be used in building construction, 41 A.L.R.3d 1290.

Meaning of terms "city," "town," or the like as employed in restrictive covenants not to compete, 45 A.L.R.3d 1339.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse, 52 A.L.R.3d 753.

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 or 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.

Radio or television aerials, antennas, towers, or satellite dishes or discs as within terms of covenant restricting use, erection, or maintenance of such structures upon residential property, 76 A.L.R.4th 498.

Easement, servitude, or covenant as affected by sale for taxes, 7 A.L.R.5th 187.

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