Roberts v. Lee

Gary D. Lee and Sheryl D. Lee sued their neighbor Frederick L. Roberts to enjoin Roberts from using his residence for commercial purposes in violation of the restrictive covenants applicable to their residential subdivision. Following an evidentiary hearing, the trial court issued a permanent injunction against Roberts. Roberts appeals, and we affirm. “The construction, interpretation and legal effect of a restrictive covenant is an issue of law to which the appellate court applies the plain legal error standard of review.” Punctuation and footnote omitted. Crawford v. Dammann , 277 Ga. App. 442, 444 1 626 SE2d 632 2006. Whether Roberts violated the restrictions on the use of his property as contained in the restrictive covenants “involved both questions of law and fact and can only be overturned in the event of manifest abuse of discretion.” White v. Legodais , 249 Ga. 849, 850 2 295 SE2d 99 1982. See Sissel v. Smith , 242 Ga. 595, 597 3 250 SE2d 463 1978 “whether . . . restrictive covenant prevents the incidental use of a portion of a residence for business or trade purposes is a question of fact depending upon the facts and circumstances of a given case”.

The evidence before the trial court showed that the Lees and Roberts were homeowners in the Mallard Lake Subdivision in Carroll County. The subdivision property is subject to the Declaration of Protective Covenants Applicable to Mallard Lake the “Covenants”. The Covenants provide, among other things, that the subject property “is intended and shall be used for residential purposes only. All commercial and business activities are prohibited.” In addition, “no lot shall be used except for residential purposes.”