A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer
Friday, December 24, 2010
Monday, December 6, 2010
Wednesday, November 24, 2010
Wednesday, November 17, 2010
Sunday, November 14, 2010
The opinion followed the application of equitable principles commonly applied in partnership or other cases involving joint ownership or purchase of land. The basis of the action was a claim to partition the property.
The trial court had appointed a special commissioner to sell and determine the equitable division of the proceeds. The trial reviewed the findings of the special commissioner in a bench trial without a jury.
Thursday, November 11, 2010
Tuesday, November 2, 2010
FAILURE OF CITIES AND COUNTIES TO FOLLOW THE LAW VIOLATES THE STATE AND FEDERAL CONSTITUTIONS AND THE CLEAN WATER ACT
In Georgia, the National Pollutant Discharge Elimination System (“NPDES”) under the Clean Water Act of 1972 is implemented through state permits issued by the Environmental Protection Division (the “EPD”) of the Georgia Department of Natural Resources (“DNR”). An NPDES Permit allows a person or entity to discharge pollutants into waters of the state without violating state and federal laws.
Cities and counties in the North Georgia Metropolitan area are subject to requirements of NPDES Permits for their storm water drains. In order to discharge storm water from streets and gutters into state waters, cities and counties subject to an NPDES Permit must comply with the terms of the EPD issued permit.
Thursday, October 28, 2010
The proposed property maintenance code language that the City seeks to implement contains language that would try to place the obligation of storm water maintenance for public drainage courses on the property owners where the drainages are located. Under a literal reading of the ordinances, a City official could issue an arrest citation against a property owner that fails to maintain a public detention pond located on the owner's property.
Tuesday, October 26, 2010
In a recent decision of Parker v. City of Glennville the Georgia Supreme Court issued an opinion on October 18, 2010 in which the Court examined a grass cutting ordinance to determine if it was unconstitutional under either the Due Process or Equal Protection Clauses of the state constitution, Georgia Constitution of 1983, Articles 1, 1, 1 and 1, 2, 1. The Court upheld, for a second time in the last six months, a local ordinance that required citizens to cut grass on their property.
Saturday, October 16, 2010
The case does not seem to significantly change or alter easement law. It does, however, help clarify whether users of sewer easements have the right to enlarge the pipes to permit changes in rules and upstream conditions over time. While the case involved a sewerage easement, it also will help provide guidelines for courts and land owners to determine their rights and obligations in maintenance of storm water easements.
Tuesday, October 12, 2010
Tuesday, October 5, 2010
You are not enslaved when you mow your lawn. The Court held that the ban on slavery does not prohibit cities from requiring their citizens to cut their grass as a civic duty. The defendant homeowners in the case had attacked the ordinance on a variety of grounds, which included, but were not limited to, an argument that a law requiring one to cut their grass was an constitutional infringement of the prohibition on slavery contained in the Thirteenth Amendment of the United States Constitution.
The homeowners also complained that the ordinance violated their rights to due process of law. The Court, however, held that there is a rational relationship between the punishment inflicted by ordinances that require citizens to cut their lawns, and the public health, safety and welfare goal of having nicely groomed lawns.
Friday, October 1, 2010
In a recent court opinion, Georgia courts dismissed a claim of a neighbor against her homeowners association related to alleged erosion damages she allegedly suffered from the absence of a ditch that the plaintiff claimed the developer or association should have built on the homeowner association’s common property. The court dismissed the nuisance and trespass claims for injury to the plaintiff’s property because it held the plaintiff homeowner had failed to present any evidence that the damages on the homeowner’s land were caused by the absence of the ditch on the property under control of the association. Lore v. Suwanee Creek Homeowners Ass'n, Inc., Case Nos. A10A0012, A10A0013 (Ga.App., June 24, 2010.)
Wednesday, September 29, 2010
Tuesday, September 28, 2010
Where a property owner is suffering flooding from streets or other areas where water has not been treated the owner may have a claim under Georgia or federal law. The Clean Water Act of 1972, 33 U.S.C. Section 1251, et seq., incorporates state standards as limitations on discharge under the Act. A discussion of the history of water pollution laws may help explain the state implementation and setting of water quality standards. An opinion of the United States Court of Appeals for the Eleventh Circuit, considering a case generated in a Georgia District Court, explained the context of local laws regarding storm water discharges as follows:
In 1972 Congress passed the Clean Water Act (“CWA”) amendments, 33 U.S.C. §§ 1251-1387, to remedy the federal water pollution control program which had “been inadequate in every vital aspect” since its inception in 1948. EPA v. State Water Res. Control Bd., 426
200, 203, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (1976). The amended CWA absolutely prohibits the discharge of any pollutant by any person, unless the discharge is made according to the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. § 1311(a). This “zero discharge” standard presupposes the availability of an NPDES permit, allowing for the discharge of pollutants under the conditions set forth in the permit. U.S. § 1342(a)(1). NPDES permits are usually available from the Environmental Protection Agency (“EPA”); however, 33 U.S.C. § 1342(c)(1) suspends the availability of federal NPDES permits once a state permitting program has been submitted and approved by the EPA. Thus, if a state administers its own NPDES permitting program under the auspices of the EPA, applicants must seek an NPDES permit from the state agency. See 33 U.S.C. § 1342(c)(1); Gwaltney v. Chesapeake Bay Foundation, 484 Id. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). On June 28, 1974, the State of U.S. was authorized by EPA to administer an NPDES program within its borders. The Georgia agency responsible for administration of that program is the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources. EPA-issued NPDES permits are thus not available in Georgia . Georgia
Hughey v. JMS Development Corp., 78 F.3d 1523, 1524 -25 (11th Cir. 1996).