Wyndham Lakes Homeowners Association, Inc. “Association” appeals from the denial of its motion for summary judgment against and from the grant of summary judgment to Betty Beecroft Gray and John R. Gray, whom the Association sued seeking payment of past due Association dues. Because the trial court’s judgment was based on erroneous legal conclusions, we reverse. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.1 So viewed, the undisputed record shows that in May 1987, developer Picketts Properties, Inc. executed a security deed in favor of First National Bank of Paulding County “Bank” to secure a loan on the tract of land that would become the Wyndham Lakes development. In September 1987, Picketts Properties recorded a Declaration of Covenants, Conditions and Restrictions for Wyndham Lakes “Declaration”, which included two adjoining lots now owned by the Grays. The Declaration contained the following language: The Declarant hereby declares that all the property described in Exhibit “A” . . . shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions which shall run with the real property submitted to this Declaration and which shall be binding on all parties having any right, title or interest in the described properties or any part thereof, their successors and assigns and shall inure to the benefit of each owner and each such owner’s successors and assigns thereof. Exhibit A contained a description delineating boundaries that include the Grays’ property, and the Declaration contained the duty to pay the assessments the Association seeks to recover in this suit.
In October 1987, Picketts Properties recorded a plat for the Wyndham Lakes development, which included the Grays’ property and contained the word “out” on several lots including the Grays’, designating them according to the key on the plat as “unsuitable for septic system.” The Grays deposed that they understood the word “out” to mean that the lots were not buildable in their current condition. In May 1990, Picketts Properties recorded a transfer of a portion of the original Wyndham Lakes tract back to the Bank, via a warranty deed, apparently to avoid foreclosure. In January 1991, Picketts Properties purported to transfer to the Bank its rights as declarant under the Declaration. The transfer was recorded in December 1991. Also in December 1991, the Bank purported to amend the covenants to remove the covenants and restrictions from a portion of the tract not including the Grays’ property. In 1993, the Bank then transferred the Wyndham Lakes property including the Grays’ property, via limited warranty deed to Thomas M. and Thomas H. Steed, who transferred it via warranty deed to their company, Springville Corporation, which transferred two adjoining lots to the Grays via warranty deed. Each of these transactions was duly recorded, but none of latter three deeds referred to the Declaration.2
