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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.

Tuesday, October 12, 2010

Technical Traps for Property Lawyers

One of the problems with dealing with issues involving local land use ordinances such as land development codes and zoning ordinances is that lawyers can commit simple mistakes that provide the courts with ample opportunities to dismiss their claims or defenses.   One rule of evidence that is often overlooked or waived by acts of the parties to litigation is the requirement that parties who rely on a county ordinance in a state court must introduce a certified copy of the ordinance.   The recent nuisance opinion in Thorsen v. Saber published by the Georgia Supreme Court on September 20, 2010 contains another example of a case that the Georgia Supreme Court dismissed due to the failure to introduce a certified copy of the ordinance in the superior court.

In Thorsen, the Supreme Court of Georgia heard the appeal of neighbors of a loud bar who complained that the bar was so noisy it constituted a nuisance.  The trial court had issued an order that allowed a level of noise that left the neighbors dissatisfied.  They appealed to the Supreme Court arguing that the trial court ignored the local municipal ordinance that they claimed limited decibel emissions in commercial zoning districts near homes.   The Supreme Court denied the appeal because, among other things, it could not find a certified copy of the municipal ordinance in the record on appeal.   Also, the court's opinion indicated that the parties had failed to include evidence in the record that pertained to the nuisance claims.

This requirement for a certified copy of ordinances is contained in the Georgia Code of Evidence.  For litigators, the rule is compounded in application by the fact that sometimes local officials will intentionally refuse to certify an ordinance once litigation commences.  In such a case, the litigation can be greatly extended and complicated.

Another source of complication and confusion is that the requirement differs in municipal or city courts from magistrate courts, state courts, and superior courts.  Since city courts are created by charter, such courts should be able to take judicial notice of the ordinances created under their charters.

Knowledge of the latter rule may say a lot about the procedural context of Thorsen and where the claim originated.   Presumably the appellate court would have permitted appellate review of an uncertified copy of the ordinance admitted into evidence by a city court considering a petition to enforce the nuisance ordinance, but because the plaintiff homeowner apparently filed the claim in superior court, a certified copy was needed.  I am not certain of this last observation though; a litigant may have to introduce another certified copy of a municipal ordinance if a case proceeds from city court to superior court by way of a writ of certiorari.

The rules in these cases are very complicated to the specific area of land and property law practice. Other requirements that sometimes strike unwary parties include ante litem notice provisions required as a condition of filing an action against a municipality.  This requirement is confusing because notice provisions called "ante litem" requirements differ for counties and cities in time. Also, there is no true "ante litem" (i.e., "before litigation")  notice for filing suit against a county; the applicable code section, O.C.G.A. 36-11-1, only creates a shortened statute of limitations/notice requirement that is not a true "ante litem" requirement.  Those other provisions may be discussed in future entries for the Teague & Zeliff blog.      By Stuart Teague

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