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Georgia Court of Appeals tacitly affirms homeowners associations’ ability to utilize covenants not to sue

11/4/25

By: Marissa A. Dunn & A. Ali Sabzevari

On September 10, 2025, the Court of Appeals of Georgia decided the case of Kinnaird v. Morningview Homeowners Association, Inc. In this case, Kinnaird (homeowner) applied to the Association’s Architectural Review Committee to install solar panels on his roof. His application was denied. Kinnaird sued the Association for a declaratory judgment, asking the trial court to declare a ban on solar panels unlawful and not in accordance with the covenants. He also sued for breach of contract, breach of legal duty, interference with property rights, injunction and attorneys’ fees. 

In response, the Association argued that the Declaration contained a covenant not to sue, barring suits for decisions made by the Architectural Review Committee. The relevant provisions of the declaration read as follows:

Plans and specifications are not approved for engineering or structural design or quality of materials, and by approving such plans and specifications[,] neither the ARC, the members thereof, nor the [HOA] assumes liability or responsibility therefor, nor for any defect in any structure constructed from such plans and specifications. Neither … the [HOA] [nor] the ARC … shall be liable in damages to anyone submitting plans and specifications to any of them for approval or to any owner or property affected by these restrictions by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications.

Every person who submits plans or specifications and every owner agrees that such person or owner will not bring any action or suit against … the [HOA], [or] the ARC … to recover any damages and hereby releases, remises, quitclaims and covenants not to sue for any claims, demands and causes of action arising out of or in connection with any judgment, negligence or nonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands and causes of action not known at the time the release is given.

The trial court agreed with the Association’s interpretation and dismissed the suit under the covenant not to sue. 

On Appeal, the Court of Appeals applied standard rules of contractual interpretation and found that the trial court erred. Instead, the trial court found that the Declaration did bar suits, but barred suits flowing from engineering design, quality of materials or defects in the structure of construction. It did not bar “all suits” flowing from a decision by the Architectural Review Committee, because of the context in which the covenant was placed in the Declaration. 

The Court found that Kinnaird’s suit was not of the type barred by the Declaration’s covenant not to sue, but that Kinnaird would be barred from bringing suit for defects or the other barred reasons. The case was remanded to the trial court to consider the issues on the merits.

The Court of Appeals’ decision affirms that covenants not to sue are enforceable within the context of the Declaration and under ordinary rules of contractual interpretation. This case is a major win for Associations fighting allegations that covenants not to sue are unconscionable or unenforceable under Georgia law. 

For more information, contact A. Ali Sabzevari at 770.303.8633 or ali.sabzevari@fmglaw.com, Marissa A. Dunn at 770.818.4243 or marissa.dunn@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.