A Georgia covenant that bars combining lots does not bar building across them
A Georgia covenant that bars combining lots does not bar building across them
2026-09-10 · Georgia · Courts
What happened. The Georgia Court of Appeals has reversed a judgment against a McIntosh County owner who wanted to build a single house spanning two of his lots, holding that a covenant forbidding changes to lot boundaries does not forbid building across one.
Anderson v. Tolomato Island Property Owners Association, Inc., No. A26A0623, decided 26 June 2026. McFadden, P.J., with Watkins and Padgett, JJ., concurring. Published; reversed and remanded.1
The facts
Steven Anderson bought three adjacent lots in the Tolomato Island – Phase I – The Thicket subdivision in April 2023. He filed a survey with McIntosh County combining two of them, and asked the architectural review board to approve a house spanning the combined lot.
The association refused and won summary judgment on the basis that the declaration “would not permit construction of a residence” there.
The rule the court applied
Georgia's canon of strict construction, stated in its usual form: “restrictions upon an owner's use of land must be clearly established, and covenants restricting the use of real property may not be enlarged or extended by judicial construction.”
Applied to the two clauses in play, that produced a split result.
Article 10.15 — the association wins. The court held the clause unambiguously bars Anderson from changing lot boundaries without the declarant's written consent. So “for purposes of the Declaration, Anderson's lots remain separate, notwithstanding their treatment by McIntosh County.”
A county survey does not amend a recorded declaration. That point alone is worth a Georgia owner's attention.
But — the owner wins on the question that mattered. “Article 10.15 contains no restriction against the construction of a house across a boundary line.”
The definitional argument, answered
The association fell back on Article 1.20's definition of “Lot,” which refers to a single-family residence. The court's answer is neat:
“If a house meant for a single family is built across more than one lot, each lot would still be occupied as a residence for a single family.”
The warning in the last paragraph
The court then did something unusual and useful — it cabined its own decision:
“The grant of summary judgment to Anderson as to the limited declaration he seeks does not mean that Anderson is entitled to build his house… given the significant discretion that the Declaration confers to the ARB in such matters. There might be other reasons for disapproving Anderson's construction plans.”
Injunctive relief was left to the trial court on remand.
The gap between “the covenant doesn't forbid it” and “they have to approve it”
That closing paragraph is the most practically important part of the decision, and it is the point Georgia homeowners most often miss.
Two separate questions live in every architectural dispute:
- Does the declaration prohibit this? A question of construction, answered strictly, and answerable by reading the document. Anderson won this one.
- Must the review board approve it? A question about the exercise of discretion the declaration confers, reviewed deferentially. Anderson has not won this, and on remand may not.
Under Saunders v. Thorn Woode Partnership, L.P., 265 Ga. 703 (1995), where a declaration delegates decision-making to a committee, the judicial questions are whether the exercise of authority was procedurally fair and reasonable and whether the substantive decision was made in good faith and is reasonable and not arbitrary and capricious. That is a real standard, but it leaves a Georgia review board considerable room.
Georgia's other 2026 architectural decision shows what happens when an owner conflates the two. In Cotton v. Vinings Estates Community Association, owners who built without approval lost entirely and were ordered to demolish, on a declaration providing the board “shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations.”2
What the pair means for an owner
- Read the covenant literally, and hold the association to the same. Georgia will not extend a restriction by construction. If the declaration bars combining lots, that is what it bars.
- A county filing is not a declaration amendment. Anderson's recorded survey combined the lots for McIntosh County and did nothing under the declaration.
- Win the construction point first, then apply. Anderson sought a declaratory judgment rather than building and litigating afterwards. That sequencing is why he is still in the game.
- Expect the discretion argument next. Setbacks, massing, drainage and aesthetic guidelines are all live on remand.
Where the review board's discretion has limits
Deferential is not unreviewable, and 2025 supplied the counterweight. In Kinnaird v. Morningview Homeowners Association, the Court of Appeals reversed summary judgment for an association that had denied a solar application, holding a broad covenant not to sue did not insulate it from a claim about “how the HOA and ARC did or did not execute their duties in the approval/disapproval process.”3
Read together, the Georgia position in 2026 is reasonably clear:
- The declaration is construed strictly against restriction — Anderson.
- Within its granted discretion the committee is reviewed deferentially — Cotton, Saunders.
- But how it exercised that discretion is justiciable, and a covenant not to sue does not change that — Kinnaird.
What SB 406 does and does not add
Almost nothing directly. Georgia's new Chapter 43-17A contains no architectural-review provisions: no approval deadline, no requirement of written reasons for a denial, no appeal to the board of directors, and no standard of review. Section 43-17A-7's twelve owner rights do not mention architectural applications.
Two provisions touch the edges. From 1 January 2027, the definition of “governing documents” at § 43-17A-1(3) includes “any rules and regulations established by its board of directors” — so an association's architectural guidelines are part of the registration filing with the Secretary of State, and therefore a matter of public record rather than something an owner must ask for. And a denial can be the subject of a complaint under § 43-17A-5 by a person residing in the development, within 180 days.4
Whether a hearing officer will second-guess an architectural decision is unknown; nothing in the statute says they may not.
What to watch next
The remand. If Tolomato Island's review board denies Anderson's plans on aesthetic or siting grounds, the case returns as a Saunders dispute rather than a construction dispute — and that is the version that would tell Georgia something new about how much discretion a review board actually has.
Related Georgia HOA Topics
- Anderson v. Tolomato Island Property Owners Association, Inc., No. A26A0623 (Ga. Ct. App. 26 June 2026) — slip opinion ↩
- Cotton v. Vinings Estates Community Association, Inc., No. A26A0227 (Ga. Ct. App. 6 May 2026) — slip opinion ↩
- Kinnaird v. Morningview Homeowners Association, Inc., No. A25A1083 (Ga. Ct. App. 10 Sept. 2025) — slip opinion ↩
- Senate Bill 406, as passed (26 LC 49 2879S) — signed copy, Office of the Governor ↩
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