banner-1193264_1920Two clients, in two different matters, recently asked me to consider whether restrictions recorded against properties in Cobb County, Georgia, continue to be effective in light of the Georgia statutory limitation (the “20-year rule”) that “covenants restricting lands to certain uses shall not run for more than 20 years  . . . in counties for which zoning laws have been adopted.”  O.C.G.A. § 44-5-60 (b).   This statute applies to both building and use restrictions.  See Goddard v. Irby, 255 Ga. 47, 335 S.E.2d 286, 288  (Ga. 1985)

Both properties were in Cobb County, which enacted its zoning ordinance in 1972. One property was subject to prohibitions against certain uses, including that of a grocery store for so long as, up to 40 years, an adjacent property was leased to a grocery store; limitations of maximum building area and height; and requirements for architectural plan approval.  These encumbrances derived from a deed executed and recorded in 1984.   I determined that these restrictions are no longer enforceable under the 20-year rule, and the title insurance company agreed.

The 20-year rule trumped the grocery store restriction that, by its terms, was to last up to 40 years.  A former mentor of mine once represented an institutional landowner selling a prime Atlanta property to an institutional buyer. The purchaser was determined to impose certain restrictions on adjoining properties of the seller but became concerned about the limitation of the 20-year rule. The purchaser opted to require zoning conditions, in lieu of recorded covenants, on the adjoining properties.  The zoning conditions would last until modified, and any modification would a procedure in which the buyer would be in a strong position to protect its interests.  The buyer’s decision aligned with the apparent intent of the 20-year rule:  to render zoning and land use ordinances the ultimate long-term controlling source of building and use restrictions.  The community will generally tolerate private covenants only for a time.

The other property was a residential subdivision of 10 lots subject to a declaration of covenants, conditions and restrictions (“CCRs”) executed in 1989 and recorded in 1990.   When a dispute arose among some of the homeowners, the attorneys on both sides agreed that the CCRs were no longer effective due to the 20-year rule.  Had the subdivision contained at least 15 lots, the CCRs would have renewed automatically unless terminated in accordance with the statute.  See O.C.G.A. § 44-5-60(d)(1).  With the CCRs expired, the only use and building restrictions applicable to the subdivision lots are those in the Cobb County zoning and land use codes.