Clary Lakes Homeowners Association, Inc. the “Association” brought this action for damages and injunctive relief seeking to enforce a restrictive covenant, which concerned the parking of vehicles in garages and the use of garages for storage, against homeowners Joseph and Patricia Marino. The Marinos filed an answer and counterclaims, acknowledging that they were in violation of the restrictive covenant but contending that the Association’s enforcement action and the covenant were invalid on several grounds. Following discovery, the trial court denied the Marinos’ motion for summary judgment and granted in part the Association’s cross-motion for summary judgment. The trial court determined that the Association’s enforcement action was not barred by the two-year statute of limitation; that the restrictive covenant was exempt from the written consent requirement imposed by OCGA § 44-5-60 d 4; that the covenant was validly enacted and enforceable against the Marinos under the Georgia Property Owners’ Association Act the “POA Act” or the “Act”, OCGA § 44-3-220 et seq.; that the Marinos were estopped from challenging the validity and enforceability of the covenant; that there was no evidence that the Association’s denial of the Marinos’ request for a variance was arbitrary, capricious, or done in bad faith; and that the Association rather than the Marinos was entitled to attorney fees under the “prevailing party” provision of the neighborhood covenants. The Marinos now appeal from the trial court’s summary judgment order.
For the reasons discussed below, we conclude that for the restrictive covenant at issue to be enforceable against the Marinos, they had to agree to the covenant in writing pursuant to OCGA § 44-5-60 d 4, or the covenant had to be approved by at least two-thirds of the votes in the Association pursuant to OCGA § 44-3-226 a of the POA Act. Because the uncontroverted evidence shows that neither condition was met in this case, the restrictive covenant was unenforceable against the Marinos, and the trial court erred in concluding otherwise. Consequently, we reverse the trial court’s grant of summary judgment to the Association, and its denial of summary judgment to the Marinos, on the Association’s claims for damages and injunctive relief predicated on the alleged breach of the restrictive covenant, and we remand the case with direction for the trial court to enter summary judgment in favor of the Marinos on those claims. We likewise reverse the trial court’s grant of summary judgment to the Association on its claim for attorney fees, but we affirm the denial of summary judgment to the Marinos on their competing claim for attorney fees because a ruling on the fees issue would be premature at this point in the litigation.
