In Polo Golf & Country Club Homeowner’s Association, Inc. v. Rymer, 294 Ga. 489, 754 S.E.2d 42 (2014), the Supreme Court of Georgia affirmed the denial of the defendant association’s motion for summary judgment on plaintiffs Rymers complaint for property damage as a result of continuous flooding on the Rymers property. The Rymers are property owners in the Polo community and members of its mandatory homeowners association which includes various restrictive covenants.
Polo’s declaration of restrictive covenants was recorded in 1987, and it provided that each homeowner would be responsible for maintenance and repair of stormwater facilities on her own property affecting or altering the surface waters on any lot. Polo would be able to, amongst other things, enter the homeowner’s property to make such a repair in the event the homeowner violated the covenant. The stormwater facilities in the Polo community were not dedicated to Forsyth County as part of the restrictive covenants.
In 1996 Forsyth County enacted a stormwater management ordinance which has as one of its purposes the adoption and implementation by its Department of Engineering of a stormwater management program for the county. Pursuant to the ordinance, in 2004 the Department of Engineering created an addendum requiring homeowner’s associations to maintain stormwater facilities on their property.
When the Rymers, after experiencing multiple events of flooding to the interior of their home, demanded that Polo and Forsyth County fix the cause of the flooding, Polo responded in writing by stating that the county was responsible for making the necessary repairs, as opposed to the Rymers, and that Polo would be selecting a contractor to repair the stormwater facilities throughout the entire Polo subdivision at its own expense. Those repairs were never made and the Rymers’ house experienced additional flooding events. Prior to litigation, Polo never contended that the Rymers were responsible for the repairs for the stormwater facilities on or under their own property.
The Rymers filed suit for property damaged against Polo and Forsyth County, and, as to the Rymers, Polo filed a counterclaim for equitable relief compelling them to repair the stormwater facilities on their property pursuant to the restrictive covenants. Polo subsequently moved for summary judgment on the Rymers’ complaint on the grounds that they were bound by the covenants to repair the stormwater structures on their property. The motion was denied.
Under O.C.G.A. § 24-4-27, the doctrine of equitable estoppel may be asserted where there exists the intent to deceive “on the part of the party to be estopped…by which another been misled to his injury.” Under the doctrine of promissory estoppel, “[a] promise which the promisor should reasonably expect to induce…to induce forbearance on the part of the promise…which does induce such…forbearance…is binding if injustice can be avoided only by enforcement of the promise.” O.C.G.A. § 13-3-44 (a). Although promissory estoppel is generally viewed in the context of a contract that is enforceable without consideration, “Georgia law views it as a doctrine wherein consideration is supplied by the reliance of the promisee on the promise of another.”
The Court considered that both the doctrines of equitable estoppel and promissory estoppel were applicable to the Rymers’ case. Based on the representations made by Polo to Rymers that (1) the county was responsible for the repairs and (2) that Polo would be selecting a contractor to repair the stormwater facilities throughout the entire Polo subdivision at its own expense, the Court affirmed the trial court’s denial of Polo’s Motion and correctly held that a genuine issue of fact as to whether Polo is estopped from enforcing the maintenance provision of the subject covenants against the Rymers.
It is not unusual for a homeowner to purchase a home in a planned community subject a declaration of easements and restrictive covenants that is filed of record in the county where the community is located. A declaration of restrictive covenants defines the obligations and rights of the homeowner and the association of which she becomes a member as a result of the purchase.
A typical restrictive covenant may state that it is the homeowner’s responsibility to maintain and repair any structures on his property, including any stormwater facilities on the property that may alter the natural flow of surface water on to lots within the community.
Against the factual backdrop of Rymer, a homeowner’s association must be careful not to, in contravention of the association’s restrictive covenants, provide the homeowner with any assurances that may lead to the perception that the association has undertaken, at its expense, to make any repairs on the homeowner’s property when the property has experienced flooding.
Jon D. Stewart