Marino v. Clary Lakes Homeowners Association, Inc.
Cobb · GA · Court of Appeals of Georgia
Member win · fines
What happened
The Marinos bought in Clary Lakes in 1994 and parked in the driveway/used the garage for storage as the original declaration allowed. A 2003 amended declaration added a garage-use/parking covenant they did not approve in writing. After a 2009 notice, temporary variance, and denial of a permanent variance, the HOA began daily fines in 2010 and sued in 2011. The trial court largely sided with the HOA; on July 12, 2013, the Georgia Court of Appeals reversed and directed summary judgment for the Marinos on enforceability.
What the court (or agency) held
The Georgia Court of Appeals held that a 2003 garage-use covenant requiring vehicles to be parked in garages was unenforceable against the Marinos. They never gave written consent as required by OCGA § 44-5-60(d)(4) for a greater use restriction, and the association failed to obtain the two-thirds owner approval required by OCGA § 44-3-226(a) of the POA Act. Daily fines and injunctive enforcement therefore failed. The court reversed summary judgment for the HOA and directed summary judgment for the Marinos on those issues.
Why this matters for members
New use restrictions that tighten parking/garage rules can require both owner written consent under § 44-5-60 and the POA Act's supermajority vote. Without those, fines and injunctions built on the new covenant fall.
What the member did
Appealed internally, refused to pay accruing fines, and defended on lack of written consent and lack of a two-thirds POA Act vote; sought summary judgment that the covenant was unenforceable.
Questions for the board
- When the garage-parking covenant was added, was two-thirds owner approval under the POA Act documented?
- Was each affected owner's written consent obtained for the greater use restriction?
- Are daily fines continuing on a covenant that may be unenforceable against non-consenting owners?
Questions for a lawyer
- Does § 44-5-60(d)(4) apply to this covenant as a 'greater restriction' on use?
- What recorded vote evidence exists for § 44-3-226(a) approval?
- What remedy unwinds accrued fines and liens if the covenant is void as to these owners?
Citation
Marino v. Clary Lakes Homeowners Association, Inc., 322 Ga. App. 839, 747 S.E.2d 31 (2013); No. A13A0299 (2013-07-12). Court of Appeals of Georgia. Outcome chip: fines-authority hub / secondary. Source: https://caselaw.findlaw.com/court/ga-court-of-appeals/1638645.html
_General information, not legal advice. Outcomes turn on facts and current law._
General information, not legal advice. Outcomes turn on facts and current law.