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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Monday, September 18, 2017

Homeowner Association Responsibility for Storm Water Maintenance in 2017


I blogged about homeowner association responsibility for maintenance of storm water drainage systems in subdivisions in Forsyth County years ago in 2009. Basically, the ultimate conclusion I expressed in my article was that under the 2004 Forsyth County Addendum to the Georgia Storm Water Management Manual, homeowner associations have a responsibility to maintain their detention ponds and storm water easements. To state that a little more plainly, I argued in 2009 that the Forsyth County Code required homeowner associations and property owner associations to fix their detention ponds and rotting pipes.

The issues in that obscure, 2009 blog post could only be of interest to people that own deteriorating storm water pipes, or detention ponds. But, I assume you are interested, otherwise you probably would not have read past the title to this blog. So, I am re-harvesting my 2009 statements. However, I definitely will not repeat the reasoning of the old, 2009 article because I have to assume that if you are interested enough, you either have read the old blog entry, or that you just want to cut to chase and find out what the law is now. If neither is the case, then please just stop reading and spend your Internet time on sites more worthy because we are about to delve deeply into the weeds of storm water law.


Wednesday, August 2, 2017

Agents Who Participate in Creation of a Nuisance Can Be Liable with their Principal

  

     The principles relating to nuisance liability apply to the persons that create the nuisance along with developers, builders, and property owner associations for whom they act. Under Georgia law, a person that makes decisions that cause a nuisance cannot claim some special insulation from responsibility by reason of employment or agency for another. So for example, if a property management agent is negligent in making decisions regarding management of a storm water system to the detriment of a property owner, the agent can be liable just like the principal for whom the agent may be working. Each person or entity, including even shareholders of company actors that have control over the creation or continuance of damage to property might be liable. Sumitomo Corp. of America v. Deal, 256 Ga. App. 703, 707 (2002). “One damaged by the tort of a corporate agent may sue the individual agent, the corporation or both.Foxchase, LLLP v. Cliatt, 254 Ga. App. 239, 241 (2002). Liability devolves to the person or entity that has control over the decisions that cause the nuisance to happen.
     Ultimately, this was an issue for the jury to decide in light of the scope of the agent's authority to make a decision. Because the scope of agency involves mixed questions of law and fact, “[t]he agent's authority as well as his negligence . . . are jury questions . . ..”  Warnock v. Elliott, 96 Ga. App. 778 (1957). In determining the extent of the agent’s authority to ascertain if it had committed misfeasance thereby subjecting it to liability, the agency cannot “be established by declarations of the agent alone.” Warnock v. Elliott, 96 Ga. App. 778 (1957).  



Tuesday, December 13, 2016

Georgia Supreme Court Reaffirms the Rule that a Nuisance Can Cause Damage to Both Person and Property

In a case involving a nuisance, the measure of damages includes recovery for both injury to persons and property. Persons with standing to make the claims include residents and non-resident property owners. Residents have a claim for annoyance and discomfort associated with enduring a nuisance, while property owners also have a claim for a diminished property value. The diminution in property value can take the form of a decrease in market value and lost rental value during the time the nuisance existed. Several of these principles were addressed and reaffirmed recently by the Georgia Supreme Court in an opinion in Toyo Tire N. Am. Mfg. v. Davis, 299 Ga. 155 (2016).

Wednesday, November 26, 2014

Easement by Way of Necessity Need Not be Specially Pled

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.  

Friday, September 12, 2014

Continuing Nuisance Claims Against Counties Compared to Completed Nuisance Claims


The Georgia Court of Appeals recently allowed a county to escape liability for drainage problems resulting from a pipe in the opinion in Liberty County v. Eller, 2014 Ga. App. LEXIS 424, 6-8, 2014 WL 2884097 (Ga. Ct. App. June 26, 2014).  In the Eller opinion, the court considered a claim that a county had caused damages to private property due to a pipe that had been negligently installed more than four (4) years prior to filing suit.  The Court held that all parts of the claim other than the claim for inverse condemnation due to a nuisance were barred by the doctrine of sovereign immunity.  Then, turning to the claim of inverse condemnation from a nuisance, the court dismissed the claim under the statute of limitations, which was four (4) years, holding that claim was time-barred.   

In reaching its conclusion in Eller, supra, the Court went to great lengths to distinguish the case from a continuing nuisance due to a lack of maintenance of a pipe. The court noted the statute of limitations would not have barred a continuing nuisance claim for lack of maintenance, stating as follows:
Landowners may show a continuing nuisance through evidence that an existing condition, such as a culvert or drainpipe, was improperly maintained. Kleber, supra, 285 Ga. at 417 (1); see alsoColumbus v. Cielinski, 319 Ga. App. 289, 292 (1) (734 SE2d 922) (2012) (homeowner's claim for continuing nuisance based on improper or negligent maintenance of drainage system not barred). To the extent, however, that landowners complain about the mere presence of a culvert or drain pipe “due to improper installation, their nuisance claim is permanent in nature.” Kleber, supra, 285 Ga. at 416 (1).  
Eller, supra, The court noted that the statute of limitations for a claim based on a permanent nuisance based on the existence of a pipe, as opposed to maintenance, runs at installation. Id