At issue is whether over 90 percent of the lot owners in a subdivision restricted to residential development by a recorded declaration of covenants and restrictions properly used an amendment provision in the declaration to shorten the duration of the declaration and terminate the covenants and restrictions. In the first appearance of this case, we held in Licker v. Harkleroad , 252 Ga. App. 872 558 SE2d 31 2001 that an attempt by 90 percent of the lot owners to amend the declaration to exempt only their lots from the restriction against commercial development on all the lots was void because, even though the declaration provided that it could be amended by agreement of at least 90 percent of the lot owners, the attempted amendment did not apply uniformly to all the lots in the subdivision; the declaration did not specifically allow the nonuniform amendment; and the amendment did not have the consent of all the adversely affected lot owners. The present appeal is from the trial court’s order granting summary judgment approving a subsequent amendment to the declaration by over 90 percent of the lot owners in the subdivision which amended the initial duration period for the declaration from 20 years to 15 years and terminated the declaration for all the lots at the end of the 15-year period. Because this amendment was accomplished in compliance with amendment provisions in the recorded declaration; was agreed to by a sufficient majority of the lot owners; and applies uniformly to all the lots in the subdivision, we affirm the order in favor of the amendment despite the lack of consent by all the lot owners. The subdivision at issue was developed in 1987 as a 112-lot residential community, and the declaration of covenants and restrictions was recorded in 1988 and applied uniformly to every lot sold in the subdivision. As set forth in Licker , supra, the declaration stated covenants and restrictions establishing a uniform scheme for a community restricted to residential development and having certain common facilities. The declaration provided that the covenants and restrictions shall run with the land for an initial 20-year period and thereafter shall be automatically extended for successive 10-year periods unless 75 percent of the lot owners terminate the duration of the covenants and restrictions prior to the commencement of any such 10-year period. The declaration further provided that: These covenants and restrictions may be amended during the first twenty 20 years from the date of this Declaration, by an instrument signed by not less than ninety percent 90 of the Lot Owners and thereafter by an instrument signed by not less than seventy-five percent 75 of the Lot Owners. As we noted in Licker , 252 Ga. App. 872, the subdivision never fully developed as planned. By the year 2000, only 18 homes had been built on lots in the subdivision; the homeowners association established in the declaration to manage the subdivision was nonexistent; and the common facilities such as the pool and clubhouse had been closed. Id. By that time, the developer had abandoned the development, and the Harkleroads and others the investors had purchased the undeveloped lots. Id. The investors have now purchased all but three of the lots in the subdivision and comprise well over 90 percent of the lot owners.
Acting pursuant to the amendment provisions in the declaration, the investors recorded an instrument on May 16, 2003, agreed to by over 90 percent of the lot owners, which amended the duration provisions of the declaration to provide that, instead of running for a period of 20 years from 1988 to 2008, the covenants and restrictions ran for only 15 years through May 30, 2003 with no provision for automatic extensions. It is undisputed that the effect of the amendment was to establish an earlier termination date for the covenants and restrictions on all the lots, and thus remove the restriction against commercial development on all the lots as of the new termination date. Kenneth and Eunice Brockway, who own a home located on one lot in the subdivision, are the only lot owners or interested lenders still opposing the amendment. Only two other lots in the subdivision, both with homes located on them, are not owned by the investors, and the owners of those lots failed to respond in the present litigation and had default judgments entered against them.
