After contracting to purchase property in a residential subdivision, Darron Britt filed a complaint for declaratory relief against owners and parties with interests in other property in the subdivision. Britt sought a declaration that restrictive covenants that had been made applicable to the subdivision over 20 years earlier either had expired by operation of law or do not prohibit him from re-subdividing the tracts he contracted to purchase. On cross-motions for summary judgment, the trial court ruled that the covenants are currently in effect and prohibit Britt from re-subdividing his tracts into residential lots with less than five acres. Although the trial court did not err in finding that the covenants are still in effect, it did err in ruling that their interpretation presents a legal matter for the court rather than a factual matter for the jury. We, therefore, affirm in part and reverse in part. The subdivision, known as Bay Creek Estates, is in Gwinnett County. The restrictive covenants were filed of record in 1983. Two of them are directly in issue here. The first, referred to as Item 4, states that “no lot shall be resubdivided.” The second, referred to as Item 15, states that the restrictive covenants shall be binding for a period of 20 years from the date the covenants are filed for record “after which time these covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by the owners of a majority of the lots has been recorded agreeing to modify said covenants in whole or in part.”
The property to which the covenants apply, i.e., Bay Creek Estates, was identified in a metes-and-bounds property description attached as an exhibit to the covenants. The metes-and-bounds description refers to a recorded plat the “incorporated plat”. That plat describes Bay Creeks Estates as consisting of one tract composed of 173.79 acres and another tract composed of 0.16 acres. That plat does not, however, show that either tract had been subdivided. But at about the time the covenants were recorded, the developers recorded another plat to which the covenants do not refer the “unincorporated plat”. It shows that the property had been subdivided into 23 residential lots having a minimum size of 5 acres each and a larger un-subdivided tract of 53.852 acres identified as Tract 19. Britt contracted to purchase the larger Tract 19, as well as Tract 18 which is one of the 23 residential lots consisting of 5.171 acres.
