Skylake Property Owners Association, Inc. appeals from an order of the Superior Court of White County granting partial summary judgment in favor of Harry and Kay Powell, owners of a residential lot within the Skylake development. The Powells filed a complaint, seeking damages and an injunction to prevent the Association from stopping construction of their new home. The Association answered and counterclaimed, contending the Powells failed to obtain approval to build a retaining wall on their property that violated a subdivision restrictive covenant. The parties moved for summary judgment, and the court denied both motions in most respects, finding that issues of fact remained for jury resolution. However, the court found in favor of the Powells in part, when it construed a section of the applicable restrictive covenants such that the covenant does not prohibit the construction of a retaining wall within a set back line. The Association appeals from this ruling. It also challenges the denial of its motion for summary judgment and the court’s order allowing the Powells to amend and restate their complaint. Finding no error, we affirm. 1. The Association contends the trial court erred in holding that Section 11 d ii of the restrictive covenants pertaining to use restrictions “does not create a per se prohibition on the construction of a retaining wall within the twenty foot set back line.” Specifically, the Association argues that a retaining wall is a “structure” and that the restrictive covenant prohibits any structure from being “erected closer than twenty 20 feet from the side line of any Lot.”
“Restrictive covenants are specialized contracts that run with the land.” Footnote omitted. Mitchell v. Cambridge Property Owners Assn. , 276 Ga. App. 326, 326-327 1 623 SE2d 511 2005. As with other contracts, the interpretation of restrictive covenants is a three-step process. Id. Initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury or other factfinder. The existence or nonexistence of an ambiguity is a question of law for the court. If the court determines that an ambiguity exists, however, a jury question does not automatically arise, but rather the court must first attempt to resolve the ambiguity by applying the rules of construction in OCGA § 13-2-2. Punctuation and footnote omitted. Id. at 327 1.
