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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86683
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Can association convenant be considered a contract between

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Can association convenant be considered a 'contract' between the association and homeowmer? If it is indeed to be considered a contract, wouldn't be necessary to ascertain what exactly the 'intent" of the association was when it wrote the phrase "fence must be stained or painted natural or white? In so far as the word 'natural" has assortment of meaning, whose responsibility and/or duty is to do so?
Submitted: 8 months ago.
Category: Real Estate Law
Expert:  Ely replied 8 months ago.
Hello and thank you for requesting me. Of course I recall our previous conversation.

Can you please tell me if at this time, either side has filed anything in Court, or not?
Customer: replied 8 months ago.

I did file a suite which also resulted in the most bizarre view in that the judge was not abele to define what is 'natural" so she resorted to ONLY ONE dictionary definition that says it is something natural belonging to nature without artificial.' She provided no precedent, support for this definition.


 


I said to my self, if the association says, you can 'stain natural or paint white' and then provide me a covenant that says, 'fence color must be natural or paint white" Such conflicting instruction from which the judge to make a decision and consider the word was clear and unambiguous is disturbing. The second issue I related to you is that a homeowner can pain his fence with a color that matches his outside frame of his house. Which by the way is exactly what I did. FYI the association never challenged at any time the painting of my fence doesn't match my frame. Which by the way do away with the idea of my fence being painted or stained natural.


 


The judge simply rubber stamped the association summary statement and never analyzed the case with rational and precedent. I would like you to hear your opinion on the previous issue of 'responsibility/duty the association owes to provide clear and unambiguous definition to the homeowner and the last issue I pointed on this note.


 


Thank you.


 

Expert:  Ely replied 8 months ago.
M,

Thank you.

Recall our earlier conversation, please:

I am afraid that you are asking for something that does not exist. People automatically assume that every nitty-gritty is covered by case law. This is not so. Case law is made when a Judge rules on a question brought to them by parties, on which the Court rules and issues an opinion which may be influential in other cases (i.e. case law). I am afraid that no case law has yet be made which defines the "usual and customary meaning for word natural, as of yet. It just does not exist. You may be the first to force the Court make that opinion, if someone in your situation appeals the case in a timely manner.

Ergo, there is no specific doctrine so as how to see this.

Can association convenant be considered a 'contract' between the association and homeowmer?

While not a STRICT contract in the sense of that word, the answer is still yes. If the Court has no specific doctrine to fall back on to determine verbiage, it can use the 'default' rule of contract ambiguity:

"The construction of a contract is a matter of law for the court." OCGA § 13-2-1. Extrinsic evidence to explain ambiguity in a contract becomes admissible only when a contract remains ambiguous after the pertinent rules of construction have been applied. Holcomb v. Word, 239 Ga. 847 (238 SE2d 915) (1977). Under Georgia rules of contract interpretation, words in a contract generally bear their usual and common meaning. OCGA § 13-3-2 (2). However, "if the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred." OCGA § 13-2-2 (5). Georgia courts have long acknowledged that insurance policies are prepared and proposed by insurers. Thus, if an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the 335*335 insured. See, e.g., Richards v. Hanover Ins. Co., 250 Ga. 613 (299 SE2d 561) (1983); Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291 (265 SE2d 102) (1980); American Cas. Co. v. Callaway, 75 Ga. App. 799 (44 SE2d 400) (1947); Massachusetts Benefit Life Assn. v. Robinson, 104 Ga. 256 (30 SE 918) (1898).

The court does not HAVE to take all this into consideration, but it may.

If it is indeed to be considered a contract, wouldn't be necessary to ascertain what exactly the 'intent" of the association was when it wrote the phrase "fence must be stained or painted natural or white?,

Since this is not a strict contract under the definition of one, the Judge does not HAVE to use this It is at the Court's discretion whether or not to apply parts of contract ambiguity doctrine here.

In so far as the word 'natural" has assortment of meaning, whose responsibility and/or duty is to do so?

Again, this depends on the intent, meaning, and overall circumstances.

Gentle Reminder: Please use the reply button to keep chatting, or rate and submit your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 8 months ago.

I see your rational. My issue is what you alluded which is, "...words in a contract generally bear their usual and common meaning. OCGA § 13-3-2 (2). What is the usual and common meaning of the word, 'natural" and who defines sit as a standard.


 


Collateral issue is again the phrase you highlighted, "..if the construction is doubtful.." it would be rule against the party enforcing the phrase. Wouldn't it be reasonable to think the word 'natural' is most doubtful particularly confusing when the association in a separate memo sends me to 'stain natural or paint white."


 


My argument is that when you stain something it never maintains and/or stays natural which I thought I have reasonable way of sustaining the argument that the word natural is not only vague but more frustrated by the association's accompanying memos I described earlier.


 


My other issue I asked was 'what prevents me to resort to the paint that matches with the exterior of the home' which the covenant allows, t hereby bypassing the need to argue about the fence being painted natural or white.


 


Again, I want to thank you for your insightful approaches.


Expert:  Ely replied 8 months ago.
What is the usual and common meaning of the word, 'natural" and who defines sit as a standard.

That is up to the Judge to decide. That is the whole point. Once we get past what is in doctrine, the Court makes the decision on a case by case basis. There is no case law or statute that defines natural. So the Judge makes this decision. They can use a dictionary, and often do.

Collateral issue is again the phrase you highlighted, "..if the construction is doubtful.." it would be rule against the party enforcing the phrase. Wouldn't it be reasonable to think the word 'natural' is most doubtful particularly confusing when the association in a separate memo sends me to 'stain natural or paint white."

Yes. However, this is now at the Judge's discretion.

My argument is that when you stain something it never maintains and/or stays natural which I thought I have reasonable way of sustaining the argument that the word natural is not only vague but more frustrated by the association's accompanying memos I described earlier.

I agree with you wholeheartedly. However, because this is in a no man's land of legal doctrine and no applicable definitions apply, the Judge has discretion here. They decide. That is the whole point. That is what a Judge is for.

My other issue I asked was 'what prevents me to resort to the paint that matches with the exterior of the home' which the covenant allows, t hereby bypassing the need to argue about the fence being painted natural or white.

I think we keep talking about the same thing in different words. In the end, the Judge makes a decision on a case by case basis, using existing doctrine (if any, few here that actually apply) and common sense. And if they are wrong or you feel that they are wrong, you can appeal.

Again, I want to thank you for your insightful approaches.

My pleasure and thank you for the stimulating discourse.

Gentle Reminder: Please use the reply button to keep chatting, or rate and submit your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 8 months ago.


Mr. Ely,


From your assessment, I am able to see the judge's discretion is a turning point on this case. I will redirect my argument to highlight the abuse of the judge's discretion both as a matter of law in an area the doctrine is not clear and/or established precedent about the word which carries doubtful meaning.


 


Again, I think you for your views.

Expert:  Ely replied 8 months ago.
Friend,

Exactly. The Judge's discretion is the key here. Sounds like a good plan. Good luck and my pleasure, again.

Gentle Reminder: Please use the reply button to keep chatting, or rate and submit your rating when we are finished. You may always ask follow ups at no charge after rating.
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86683
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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