The POA’s Attorney just responded and admitted in writing that the Board knows about a multi-year covenant violation regarding Petit Crest Villas but refuses to act ; and that the Association possesses no board resolutions, minutes, or written consents that ever authorized this business use ; and that the Petit Crest Villas voting bloc—which the Board is now choosing to protect—holds 64 votes that were fully counted toward the 2026 election results ; and that those 64 votes were within the margin to have changed both the recent Primary and General Election results.
In our previous reporting (January 18 and February 27), we documented a formal challenge to the Big Canoe POA regarding the unauthorized commercial use of Petit Crest Villa 636. We asked for the written authority that allows a residential lot to serve as a full-time staffed business office.
The POA’s attorney, Kimberly Gaddis, has now provided what she calls the “final correspondence“(<–link to 8 Pg PDF) on this matter. The response shifts the Board’s defense from the General Manager’s initial vague claim of being “grandfathered” to a high-stakes legal gamble on the Georgia Statute of Limitations.
The New Defense: A “Two-Year” Expiration Date on Covenants?
The Association now argues that because the office use has existed for many years, any right to enforce the residential-use covenant expired two years after that use began. They claim that under O.C.G.A. § 9-3-29, the community is effectively “time-barred” from ever requiring Lot 636 to comply with the rules that apply to everyone else.
The Problem: The statute (under subsection (c)) explicitly states that for a “continuous violation… resulting from an act or omission, the right of action shall accrue each time such act or omission occurs“.
If operating a business office is a daily “act”—which it is—then the two-year clock resets every single morning the office opens. By claiming they are “barred” from acting, the Board is essentially arguing that a violation becomes legal if you can hide it or tolerate it long enough.
By fixating on a general statute of limitations, the Association’s attorney is also attempting to force a property-law square peg into a contract-law round hole. The reality is that Big Canoe’s Covenants are not just a set of zoning suggestions; they are a binding legal contract between the Association and every one of its 4,000+ property owners. When the Board treats a clear violation as “untouchable” due to the passage of time, they aren’t just misinterpreting a statute—they are unilaterally rewriting the terms of a contract we all signed. This shift in perspective reveals that the current standoff isn’t about how many years have passed, but about whether the Board has the authority to ignore the very contract that defines their existence.
The “Anti-Waiver” Clause: Ignored by Design? ..or a Breach of Contract and Fiduciary Responsibility?
In Georgia, the Covenants are a binding legal contract between the Association and the membership. When the Board refuses to enforce Rule A.13, they aren’t just being lenient—they are in direct breach of the contract they are sworn to uphold.
1. Contractual Mandate Over Statutory Generalities
The Association’s attorney is attempting to use a general state law to override a specific contractual promise made to every member.
- The Non-Waiver Promise: Both the 1972 and 1988 Declarations contain an explicit “Anti-Waiver” clause. This clause states that failure to enforce a restriction, “however long continued shall not be deemed a waiver of this right to do so thereafter”.
- The Logic: By purchasing property here, every owner agreed to this contractual term – including the Owners of Petit Crest Villas Unit 636. The Non-Waiver Clause was designed specifically to ensure that the community’s standards could not be eroded by a previous Board’s inertia or favoritism.
2. The Fiduciary Failure
The Board of Directors owes a Fiduciary Duty of Loyalty and Care to all members. This duty requires them to act impartially and to protect the assets and governing integrity of the Association.
- Selective Non-Enforcement: By publicly admitting they know about the violation on Lot 636 but “will not act,” the Board has created a documented record of selective enforcement.
- Failure to be Good Stewards over Election Processes: When this selective enforcement benefits a voting bloc large enough to swing an election (64 votes), the Board’s “neutrality” vanishes.
- Breach of Duty: Favoring the community’s largest voting bloc while enforcing rules against individual owners is a textbook example of a breakdown in impartial governance.
What the Attorney’s Response Finally Confirms
The Response by the Board’s Attorney did confirm several facts that should concern every property owner:
- No Authorization Exists: The POA admitted there are no minutes, resolutions, or written consents in their possession that ever authorized the business use of Lot 636.
- The 64-Vote Bloc is Real: The POA confirmed that Petit Crest Villas holds 64 votes, all of which were counted toward the 2026 quorum and election results.
- A “Cloud” Over the Election: Certified results show the margin for Board candidates was as small as 11 votes. This means the 64-vote bloc held by the beneficiary of this covenant “exception” was numerically capable of swinging the entire election.
Why “Closing the Ticket” Isn’t the End
The Board has declared the matter closed. But a governance failure of this magnitude—where the largest voting bloc in the community is granted a “special” status that contradicts both the Covenants and Georgia law—cannot be swept away by a legal memorandum.
When rules are enforced selectively, they eventually become unenforceable for everyone. If the Board can unilaterally decide that a 20-year violation is “too old to fix,” they have effectively dismantled the residential character of our community.
The High Cost of Selective Silence
This is not merely a technical disagreement over a check-in office; it is a question of whether the rules in Big Canoe actually mean what they say. If the Board’s “final word” is allowed to stand, the consequences for the community are both immediate and structural.
- The Erosion of Election Integrity: We have now seen three elections in recent years where the margin of victory was so slim that the Petit Crest Villas voting bloc—a bloc currently benefiting from a multi-decade covenant “exception”—held the numerical power to swing the result. How many more cycles will the membership tolerate where the largest single voting block operates under a different set of rules than the rest of the community?
- The Death of the Residential Covenant: By publicly declaring that a 20-year violation is “barred” from enforcement, the Board has effectively signaled that the Commercial Business Rule (Rule A.13) may now be abandoned. When a homeowner is cited for a business violation next month, their first question will be: “Why me and not the Villas?”. Inconsistent enforcement is the fastest way to make a covenant scheme legally unenforceable for everyone.
- A Red Flag for Future Buyers: What signal does this send to potential property owners and investors? A community where the governing body admits to knowing about a violation but refuses to act—despite having the explicit contractual right to do so—suggests a breakdown in professional management. For a community that relies on its reputation for high standards and orderly governance, this level of documented “acquiescence” is a serious liability.
What Comes Next?
The Board may have closed their internal ticket, but the legal and governance questions remain wide open. The Association’s own records confirm they have no document authorizing this use, and Georgia law confirms that a continuous violation resets the clock every single day.
The membership is entitled to a community governed by transparency, not “grandfathered” secrets. Whether the next chapter involves a formal demand for a special meeting of the members or an external legal challenge to the 2026 election results, one thing is certain: a “final correspondence” cannot fix a broken process.
– fobc editor
Disclaimer: This article provides analysis of community governance and public records; it is not legal advice. Big Canoe Property Owners are encouraged to review the 1972 & 1988 Covenants & Declarations and consult their own counsel regarding their individual contractual rights as members of the Association.
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