In the opinion in S-D RIRA, LLC v. Outback Property Owners; Ass'n, 2014 Ga. App. LEXIS 813 (Nov. 21, 2014), the Georgia Court of Appeals considered a claim for a right of way through a subdivision restricted by a declaration of covenants. The court made a variety of holdings regarding facts of a case involving an alleged easement to access property through property that had been subjected to a declaration of covenants and deed restrictions. The simplest holding of the case was to state that a trial court may not require the petitioner to plead specific facts to set for a claim for an easement by way of necessity under Georgia law.
The other holdings in the case are more difficult to describe. One interesting issue addressed by the court was whether the road use was a continuing violation of the covenants that escaped the bar of the two year statute of limitations applicable to covenant violations. Part of the court would have held that the first use of the road alleged to be in violation of the covenants would have barred claims based on subsequent uses that were the subject of a lawsuit brought more than two years after the first use. The court would have held that the statute of limitations for a covenant violation commenced from the first use of the road in violation of the declaration of covenants, and that a claim for breach of the covenants could not be brought more than two years after the first violation. This faction of the court would have held that the continuing nuisance doctrine that renews a claim for damages from a nuisance each time the offending act is repeated, without regard to when it first commenced, does not apply to claims for breach of land covenants. This part of the court would have apparently overruled cases applying the continuing nuisance doctrine to covenant cases.
The majority of the court appeared to rebuff this finding and held that the two year statute of limitations would commence each time the violation of the declaration of covenants occurred, or each time the road was used in violation of the covenants. This faction of the court held that the continuing nuisance doctrine that provides an exception to the bar of the statute of limitations in nuisance cases would continue to apply to claims for breach of covenants.
