A Georgia couple built a pool pavilion without approval and owe $73,000 in fees
A Georgia couple built a pool pavilion without approval and owe $73,000 in fees
2026-09-10 · Georgia · Courts
What happened. The Georgia Court of Appeals has affirmed one of the largest architectural-enforcement awards in recent state practice, and in doing so restated three rules that decide most Georgia architectural disputes.
Cotton v. Vinings Estates Community Association, Inc., No. A26A0227, decided 6 May 2026. Dillard, P.J., with Gobeil and Pipkin, JJ., concurring. Published; affirmed in full.1
The facts
The Cottons built a non-compliant outdoor kitchen and pool pavilion in Mableton without architectural review committee approval, and finished it after being warned more than once to stop.
A jury awarded the association $6,475 in unpaid fines and $73,000 in attorney's fees and costs. The trial court then entered a permanent injunction ordering complete removal and restoration.
The fee award is more than eleven times the fines. That ratio is the practical lesson of the case.
Rule one: “greater restrictions” did not save them
The Cottons argued that the ARC's written design guidelines — as distinct from the recorded declaration — were unlawful greater restrictions under O.C.G.A. § 44-5-60(d)(4), which they had never consented to in writing.
The court quoted the statute and then closed the door: “by consenting to be bound by the Declaration, the Cottons agreed in writing that the HOA or its designee reserved the right to implement new guidelines for building detached structures.”
The declaration said the Board or its designee “shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations.”
Rule two: the Saunders standard is deferential
They invoked Saunders v. Thorn Woode Partnership, L.P., 265 Ga. 703 (1995): where a declaration delegates decision-making to a group, “the only judicial issues are whether the exercise of that authority was procedurally fair and reasonable, and whether the substantive decision was made in good faith, and is reasonable and not arbitrary and capricious.”
The court noted in a footnote that Saunders itself never reached arbitrariness, and rejected the attempt to sort design guidelines into “substantive” and optional categories.
Rule three: no balancing of the harms
This is the sharpest holding, and the one Georgia homeowners most often do not expect. Irreparable harm arises “as a matter of law arising from a violation of a covenant running with the land,” so “no special showing of irreparable harm is ‘necessary other than the violation of a valid restrictive covenant.’”
Therefore “the trial court was not required to balance the harms between the parties.” The cost of demolishing a finished pavilion does not enter the analysis.
The selective-enforcement defence that never got heard
The Cottons had what sounds like the classic answer: similar structures elsewhere in the neighbourhood, and neighbour testimony about them.
That evidence was excluded at trial, and the appellate claim was deemed abandoned because they failed to argue the admissibility of any specific item.
This is worth dwelling on, because selective enforcement is the most commonly attempted defence in Georgia architectural disputes and it almost never succeeds. Two reasons appear here. It is evidentiary — it requires getting specific comparator evidence admitted, item by item, at trial. And it must be preserved on appeal by argument about those specific items, not by a general complaint that the jury never heard the neighbourhood context.
The court also brushed aside Riverwood Homeowners Ass'n v. Jones, 351 Ga. App. 716 (2019) — the resurfacing-not-removal decision homeowners' counsel routinely cite — as an attorney-fee decision only.
Why the fees were eleven times the fines
Because in Georgia the fee award is not proportional to the fine; it is proportional to the litigation. The declaration and the POA Act make the delinquent owner responsible for the association's reasonable attorney's fees actually incurred, and a case that goes to a jury and then to the Court of Appeals generates fees on that scale regardless of the sum in dispute.
This is the single most important thing a Georgia homeowner can understand before deciding to fight an architectural citation: the fine is not the exposure.
What changed on 1 July 2026
Two months after this decision, Georgia's new attorney-fee gate took effect — and a board reading Cotton as a green light should read the statute alongside it.
Section 7 of the Georgia Property Owners' Bill of Rights Act, effective 1 July 2026 for actions filed on or after that date, provides that before an association may collect or be awarded attorney's fees it must give certified-mail notice identifying outstanding fines or delinquent fees, allow 30 days from receipt to pay, and provide an itemised list of the fees claimed. A judge conducting a bench trial must review the claim for reasonableness and enter an order saying whether the fees were reasonable, before any award.2
Note the limit of that: Cotton was a jury trial, and subsection (g) is written for “[j]udges conducting bench trials.” The notice and itemisation requirements in subsection (f) apply regardless.
And the Court of Appeals had already shown, a year before the statute, that it would enforce reasonableness with real consequences: in Ellington Homeowners Association, Inc. v. Ibrahim, an association that won its case recovered nothing at all in fees, because its invoices showed rates inconsistent with its own supporting affidavit.3
What an owner can actually do
- Apply first, always. The Cottons' position was fatally weakened by building without approval and continuing after warnings. Almost every Georgia architectural case that a homeowner wins is a case about how the committee decided, not about whether they had to ask.
- Read the amendment and delegation clauses. If the declaration reserves the right to adopt guidelines, the guidelines are enforceable — and § 44-5-60(d)(4) will not help.
- Attack the process. Saunders is deferential but it is a standard. Kinnaird v. Morningview, decided in September 2025, confirms an owner can sue over “how the HOA and ARC did or did not execute their duties in the approval/disapproval process” notwithstanding a broad covenant not to sue.
- Stop building when you get the letter. Continuing after a warning is what converts a dispute into an injunction case.
What it means for a board
The association won completely, and the case still cost it a jury trial and an appeal. From January it will also be operating under a statute that removes fines from the foreclosure calculation entirely and puts them last in the order of payment application — which means the enforcement route Cotton validates is a litigation route, not a lien route.
What to watch next
Whether Georgia trial courts begin entering the § 44-3-232(g) reasonableness order as a matter of routine in association fee cases, and what happens to awards on the Cotton scale when they do.
Related Georgia HOA Topics
- Cotton v. Vinings Estates Community Association, Inc., No. A26A0227 (Ga. Ct. App. 6 May 2026) — slip opinion ↩
- Senate Bill 406, as passed (26 LC 49 2879S) — signed copy, Office of the Governor ↩
- Ellington Homeowners Association, Inc. v. Ibrahim, No. A25A0707 (Ga. Ct. App. 19 May 2025) — slip opinion ↩
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