GRAMMER v. ALI (2026)

In this case, the trial court denied Amy B. Grammer's motion seeking permanent injunctive relief against Shazman Ali, 24/7 Construction, LLC, and Goldstar Investment Group, LLC (“Defendants”), finding that the document creating the restrictive covenants Grammer was seeking to enforce was legally insufficient to enforce the covenants against Ali. Grammer appeals, raising several claims of error. For the reasons set forth below, we affirm the trial court's order in part, vacate it in part, and remand the case to the trial court.

The record here shows that in April 2022, Defendant Ali submitted applications to the Whitfield County Planning and Zoning Department to build three homes upon a parcel of land that he owns, located on Dug Gap Road in Whitfield County (“2051 Dug Gap Road”).¹ This parcel of land is located within the L. M. Babb Estate Subdivision (“Babb Subdivision”). Grammer, who owns a home in the Babb Subdivision, filed a complaint seeking to permanently enjoin Defendants from building those homes.

In the complaint, Grammer alleged that Tract A of the subdivision (within which she alleges Ali's land is situated) “is subject to certain real estate covenants which run with the land” and are recorded in the Whitfield County real estate records. These covenants include restrictions on the size of home that can be built (no less than 1,800 square feet), the street frontage required for any building (no less than 120 feet), distance between buildings and lot lines (no less than 50 feet), and signage allowed to be displayed. Grammer alleged that the homes Defendants intended to build at 2051 Dug Gap Road would violate these covenants and must be enjoined. The parties agreed to a temporary injunction pending the outcome of Grammer's lawsuit.

Discovery revealed that a document titled “Protective Covenants Against Tract A of the L. M. Babb Estate Subdivision” was executed in March 1968, and signed by Mary Hutton, Nora Taylor Babb, and Q. M. Babb. The covenants include the restrictions as alleged by Grammer, and further state that they “shall apply to all lots located in the L. M. Babb Estate Subdivision, Tract A [as recorded in the county plat records],” and again Grammer alleges this tract includes 2051 Dug Gap Road. Grammer acknowledges that 2051 Dug Gap Road was at the time the covenants were enacted co-owned by Mary Hutton and her husband Arthur Hutton.² Arthur's name and signature do not appear on the restrictive covenant document.³ Further, although the restrictive covenant document and its amendments are recorded, there is no mention of specific restrictions in any of the deeds in Ali's chain of title to the property. The Warranty Deed granting interest in 2051 Dug Gap Road to Ali's immediate predecessor in interest, Dug Gap Road Investment, LLC, did state that the land was being conveyed subject to all covenants and restrictions which may lawfully affect the property.

After discovery, the parties submitted briefing and appeared at a hearing on Grammer's request for a permanent injunction. The court then issued its order denying the injunction. The trial court found the 1968 restrictive covenant was not valid because one owner of the property (Mary) could not unilaterally restrict the property without the other co-owner's (Arthur's) consent. The court went on to find that there was not sufficient evidence to show that Arthur ratified the restrictive covenants at any point after they were executed. Finally, although the parties had not raised equitable theories in their pleadings or briefings, the trial court ruled that neither promissory estoppel nor implied covenant/equitable servitude theories served to provide relief to Grammar. This appeal followed.

Grammer raises five enumerations of error, asserting that the trial court erred (1) in holding that Mary could not unilaterally encumber the property she owned as a tenant in common; (2) in finding that the evidence did not show that Arthur subsequently ratified the restrictive covenants; (3) in holding that promissory estoppel did not apply; (4) in holding that an implied covenant or equitable servitude did not apply; and (5) by failing to decide whether another parcel of land owned by Ali was restricted by the same covenants.

1. Grammer first asserts that Mary, as a tenant in common of the land making up 2051 Dug Gap Road, was entitled to permanently encumber the property via the restrictive covenant document without the assent of her co-tenant in common, Arthur.

“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.” Roberts v. Lee, 289 Ga. App. 714, 714, 658 S.E.2d 258 (2008) (citation modified). Factual questions or mixed questions involving “both questions of law and fact and can only be overturned in the event of manifest abuse of discretion.” Id. (quotation marks omitted).

A tenancy is common “is a fractional ownership interest in the whole” of a property. Glover v. Ware, 236 Ga. App. 40, 41(1), 510 S.E.2d 895 (1999). A tenant in common has the right to the use and enjoyment of the entire jointly owned estate, subject to the rights of his or her co-tenants. OCGA §§ 44-6-120, 44-6-121. It appears Georgia appellate courts have not answered the specific question of whether one tenant in common may encumber their co-owned land with a restrictive covenant without the assent of all owners. Applying the principles of tenancy in common, we agree with the trial court that Mary was not authorized to do so in this case.⁴

As explained above, although a tenant in common has the right to possess the whole property, a tenant in common's rights are always subject to the rights of her co-tenants. OCGA § 44-6-120. One well-established rule of tenancy in common is “that one tenant in common cannot bind his nonconsenting cotenants in any disposition of their undivided interest in the common property.” Booth v. Watson, 153 Ga. App. 672, 674(1), 266 S.E.2d 326 (1980) (quotation marks omitted). A tenant in common may dispose of her share in ownership at her pleasure, and without the knowledge of a co-tenant, Motor Aid v. Ray, 53 Ga. App. 772, 774, 187 S.E. 120 (1936), but she may not bind her co-tenants in a way that would diminish the co-tenants’ rights. For example, we have held that “a tenant in common has no power to lease the common property, without the consent of the remaining cotenants, and such a lease is not binding as to those cotenants not assenting thereto.” Dozier v. Wallace, 169 Ga. App. 126, 129(4)(a), 311 S.E.2d 839 (1983). See also Friedman v. Goodman, 222 Ga. 613, 618(1), 151 S.E.2d 455 (1966) (co-tenant who did not authorize the lease cannot be bound by it; the lease “lacks the element of mutuality” between the lessee and the co-tenant who did not authorize the lease) (quotation marks omitted).

Further, because restrictive covenants necessarily limit a landowner's property rights, “restrictions on private property are generally not favored in Georgia,” and in interpreting them, we apply a presumption in favor of the free use of land by its owner. Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433, 437(1), 829 S.E.2d 618 (2019); C.H.E., Ltd. v. Kent, 262 Ga. 418, 419, 419 S.E.2d 915 (1992). (Although this case does not require us to interpret the restrictive covenants at issue, we are mindful that Grammer is seeking to limit Ali's use of his land).

These principles naturally lead to the conclusion that Mary could not encumber the entire estate to these restrictive covenants without Arthur's assent. This conclusion is explicitly stated in the Third Restatement of Property as follows:

If fewer than all of the owners of an estate attempt to create a servitude burdening that estate, the attempt does not create a servitude, but does create rights enforceable against the owners who joined in the attempt. The attempt may provide the basis for later creation of a servitude, either by estoppel of the other owners, or on partition of the estate.

Restatement (Third) of Property (Servitudes) § 2.3 (2000). Under this rule, the restrictive covenant is enforceable only against Mary herself. The commentary to the rule reasons that because a concurrent owner may not unilaterally partition or sever an estate, she also may not “encumber the interests of the other co-owners without their consent,” including a prohibition on the unilateral imposition of easements or restrictive covenants. Id. Because this covenant cannot be applied merely to Mary's interest in the land, it cannot be binding on the land as a whole without the assent of all the co-tenants.

Grammer argues that Mary's right to unilaterally encumber the property was subject only to Arthur's rights as her co-tenant, and subsequent transferees such as Ali have no right to enforce such rights that might have belonged to the original co-tenant. She relies upon OCGA § 44-5-60(a), which states that a purchaser of land obtains with his title “all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor. ․” She argues that because Mary is a former grantor, Ali took his title subject to her encumbrances. But this argument fails to recognize that Arthur is also a former grantor whose rights Ali also obtained with his purchase. Thus, for the reasons described above, Grammer cannot enforce a restrictive covenant against Ali that was not executed by all owners of the property at the time the covenant was enacted.

2. Grammer next argues that the trial court erred in finding that Arthur did not ratify the restrictive covenant, rendering it enforceable despite his lack of explicit assent on the execution document. On this issue, the trial court pointed to the 1974 deed conveying the 2051 Dug Gap Road property from the Huttons to the subsequent purchaser, noting that it contained no mention nor reference to any restrictive covenants upon the land. The court found that there was no evidence that Arthur consented to the covenant. Grammer contends that Arthur's “lack of objection” to the restrictive covenant “is tantamount to consent and ratification.” However, ratification in this context requires more than mere silence. See Friedman, 222 Ga. at 619(1), 151 S.E.2d 455 (a co-tenant's subsequent ratification of a lease made under seal by his co-tenant must be made “under seal, and can not be by words or conduct” in order to be binding). Accordingly, we find no abuse of discretion in the trial court's factual finding concerning Arthur's ratification of the restrictive covenants. See Merritt v. Marlin Outdoor Advert., Ltd., 298 Ga. App. 87, 91(2)(b), 679 S.E.2d 97 (2009) (“Where the evidence is in conflict, the question of whether a ratification has occurred is for the jury to decide.”).

3. Grammer also contests the trial court's rulings on equitable grounds. Despite the fact that Grammer did not pursue these theories in her complaint or arguments below, the trial court ruled that neither (1) promissory estoppel, nor (2) implied covenant or equitable servitude theories of recovery were available to her.

Promissory estoppel can serve as a mechanism to enforce a legally insufficient restrictive covenant, “where landowners continue to abide by and enforce their covenants in reliance on the covenants’ continued viability.” Rice v. Lost Mountain Homeowners Ass'n, 269 Ga. App. 351, 353(2) (c), 604 S.E.2d 215 (2004). Additionally, implied covenants can be enforced under a “general building scheme and development plan” even if they do not appear explicitly in the deeds, so long as the owner against whom the restrictions are being enforced purchased with notice of such restrictions. See Westhampton, Inc. v. Kehoe, 227 Ga. 642, 645(3), 182 S.E.2d 430 (1971).

As noted by Defendants, had they been given notice that the trial court intended to rule on these issues, the “discovery and evidence presented in the trial court would have been greatly different.” Although Defendants would have us bar Grammer from pursuing these theories of recovery entirely, we instead vacate the trial court's rulings on these issues, and remand the case for the trial court to determine whether Grammer may pursue those theories and, if so, conduct a full examination of them after both parties have received adequate notice and an opportunity to be heard on them. See Berlin v. City of Atlanta, 368 Ga. App. 335, 339(1), 890 S.E.2d 68 (2023) (vacating trial court's grant of summary judgment where the trial court failed to give proper notice and opportunity to be heard to the non-prevailing party).

4. Finally, Grammer argues that the trial court erred in failing to find the restrictive covenants enforceable as to another property currently owned by Ali, which is adjacent to 2051 Dug Gap Road (the “Pond Property”). According to Grammer, the Pond Property was owned in common by the three people who executed the restrictive covenants; Arthur was not an owner of this property, and thus the trial court should have found the restrictive covenants enforceable on the Pond Property. The parties appear to disagree over the nature of the trial court's finding on this issue. As we are remanding this case to the trial court for further proceedings, the trial court shall have an opportunity to clarify its ruling (or lack thereof) on this issue.

Judgment affirmed in part, vacated in part; case remanded.

FOOTNOTES

1.   Goldstar Investment Group appears to be an interested party in the resulting homes, and 24/7 Construction, LLC is listed as the contractor to build the homes.

2.   Specifically, the record shows that Mary and Arthur received the property in pieces via warranty deeds from L. M. Babb in 1954 and 1966, and they owned it together until June 1974, when they issued a warranty deed to Robert Carney.

3.   The Protective Covenants were amended at least twice. Defendants contest the validity of these amendments as well.

4.   We express no opinion as to whether Grammer may enforce these restrictions against Ali via equitable theories of relief, as described below.

Gobeil, Judge.

Rickman, P. J., and Davis, J., concur.