Who Decides Whether an Ordinance Has Been Violated?

The temptation of courts in cases involving land use ordinances is to permit the testimony of city or county officials to take over the issue of how local ordinances should be applied.  However, the rules are clear that local officials cannot testify to a jury regarding their opinion as to the meaning of an ordinance.  Ordinances are part of the law and must be construed by the courts.  

            An understanding of the evidentiary basis for ordinance construction and application is crucial in any nuisance or trespass case regarding soil and erosion or flooding.   Since it has been a slow couple of weeks for opinions from the Georgia Supreme Court, I decided to write a little about an evidence issue that affects nuisance and trespass cases.   In these cases, a defendant will often violate ordinances in connection with the actions that result in an injury to another property owner.   The proof of the violation of these ordinances is connected to the proof of the plaintiffs' case. 

            All aspects of the investigation, presentation, and defense of a land use case can be affected by a basic misunderstanding of the proper roll of the judge and jury.  It is not unusual for attorneys and litigants to evaluate their case based on an assumption that the findings of a county or city official regarding an ordinance violation are dispositive of their case.  To the contrary, the opinions of officials may not even be admissible in a trial.

County officials do not have the discretion to ignore the plain language of an ordinance. Henry County Record, Inc. v. Cmty. Newspaper Holdings, Inc., 274 Ga. 353, 353, 554 S.E.2d 150, 151 (2001).  The ultimate issue of whether a defendant has been negligent is an issue for the jury to determine and is not a proper subject of testimony.  Emory v. Dobson, 206 Ga. App. 482, 484, 426 S.E.2d 50, 52 (1992).  The testimony of county officers is not admissible regarding the plain meaning of an unambiguous ordinance.   DeKalb County v. Post Apartment Homes, L.P., 234 Ga. App. 409, 411, 506 S.E.2d 899, 901 (1998). 

Road Abandonment Does Not Extinguish Private Easements on Plat

Cities and counties often engage in road abandonment at the request of developers or property owner associations or home owner associations.  For developers, the motive is usually to remove the road bed and permit development over a former road.  For associations, the goal may be to privatize subdivision streets in order to gate a community.  A recent opinion of the Georgia Court of Appeals in Zywiciel v. Historic Westside Village Partners, LLC,  2011 WL 5842763, p. 2, Slip Op., Case Nos. A11A1243, A11A1582   (Ga. App., Nov. 29, 2011),  reiterated the rules and reasoning followed in cases such as Northpark Associates No. 2, Ltd. v. Homart Development Co.,  262 Ga. 138, 138, 414 S.E.2d 214, 215 (1992), in holding that private easements in city streets created pursuant to recording of a subdivision plat by a developer are not extinguished by road abandonment.

Local Government Has Discretion Regarding Road Abandonment

Disputes sometimes arise regarding a local government's authority to abandon public streets and roads.  Generally, in Georgia it has been difficult to challenge an abandonment resolution by a county or municipality.  In fact, the Georgia General Assembly recently amended the abandonment statute to increase the discretion of local governments to abandon streets and roads.

Avoidance of Responsibility for Flooding and Erosion

The current economic environment in Georgia has affected maintenance and improvements to storm water pipes, drainage systems, culverts, and detention ponds.  Developers have gone bankrupt and county and city governments and large insurance companies are fighting to avoid responsibility for sewers and drains due to a lack of money to address problems due to flooding and erosion.  This era has come on the heals of a construction boom that lasted fifteen (15) years leaving drainage systems unattended and deteriorating.

Property owners suffering a nuisance due to problems created by extreme rainfall events have many options to find liable parties to repair the damages to their property, but are faced with finding a lack of funded parties to finance the repairs.  Moreover, large insurance companies that may insure land owners who have helped create a problem, and governments that may own the streets and roads routing storm water flows are fighting each case aggressively to deter future suits.  The emerging liability of municipalities and counties and insurers in Metro Atlanta is in the billions.   The avoidance of responsibility by all of the parties involved is further complicated by the possibility that deeper storms and extreme rain events, such as the event that plagued the North Georgia in September 2009, are becoming more and more frequent.   

Developers Must Take Care in Assignment of Detention Pond Maintenance Responsibilities

On November 21, 2011, the Georgia Supreme Court issued an interesting opinion involving application of a technical legal principle applicable to contracts that could have a wide ranging effect on existing legal relationships between lot owners in subdivisions, home owner associations, property owner associations, subdivision developers, and county and city governments.  In an opinion written by Chief Justice Hunstein in Kennedy Development Company v. Camp, Appeal No. S11G0274 (Slip Op., Nov. 21, 2011), Georgia's highest court held that the statutory limitation on indemnity clauses in  OCGA § 13-8-2 (b) applies to agreements between developers and associations under which a developer has attempted to turn over continuing liability to an association.  The effect of the ruling in Kennedy was to prevent a developer who had been named as a defendant from seeking to hold an association responsible for a claim that a land owner had brought against the developer for damages to a lake caused by excess storm water. 

Developers use and create detention ponds and retention ponds, or lakes, in subdivisions to capture the storm water runoff from new house and street construction.  The addition of hard, impervious surfaces in connection with subdivision development increases and concentrates the volume and velocity of storm water runoff into drainages and streams.  These changes to the natural, hydrology of land can cause injuries to down stream or down hill land owners, and lake owners, if detention and storm water pipes are not carefully constructed and maintained.   Developers create homeowner and property owner associations to take over responsibility for the continued maintenance of ponds after developers leave the associations. 

Undue Influence Over Person Making a Will Requires Proof of Coercion

One of the claims commonly asserted to contest a will is the doctrine of undue influence.  Under this doctrine, persons left out of a will may contest a will in probate on a claim that the heirs included in the will improperly influenced the maker of the will before his death. On November 7, 2011, the Georgia Supreme Court issued an opinion showing the difficulty in proving undue influence.  In the opinion in Simmons v. Norton, Case No. S0A1061, the court noted a follows:

Undue influence sufficient to invalidate a will amounts to deception
or force and coercion operating on the testator at the time of
execution such that the testator is deprived of free agency and the
will of another is substituted for his. Evidence showing only an
opportunity to influence and a substantial benefit under the will
does not show the exercise of undue influence. [Cit.]
Holland v. Holland, 277 Ga. 792, 793 (2) (596 SE2d 123) (2004).

In examining the facts of the case, the appellate court noted that the challenger to the will had failed to present evidence that the heirs included in the will had committed any acts amounting to deception, force and coercion that had deprived the person making the will of his free will thereby substituting the heirs' will for his free will.   Evidence simply showing that the heirs were close to the testator and had taken him to a lawyer to rewrite the will falls short of a showing of the high standard for showing undue influence.  The appellate court upheld summary judgment to the heirs in the will and rejected the claim of undue influence.

Property Can Be Transferred by an Oral Statement

One of the basic principles every law student studies in property law class is that the Statute of Frauds requires all transfers and gifts of land to be in writing in Georgia.  However, there is a gaping exception to the Statute of Frauds that permits an oral gift of transfers of land and easements making the resolution of the issue an issue of fact for a judge or jury.  On November 7, 2011, in the opinion in Jones v. Kirk, Case No. S11A0960, the Georgia Supreme Court discussed the exception in upholding a trial court's issuance of judgment that party asserting the exception had failed to present evidence showing the exception applied to the facts of that case.

The facts considered in the opinion in Jones, supra, involved a 2.2 acre tract that was part of a 40 acre parcel owned by heirs of an estate who sought to partition and sell the 40 acres after their father died.  A grandson, however, contended that his grandfather had orally given him the 2.2 acre tract before his grandfather died. 

The heirs brought a suit to partition the 40 acres for sale so that they could divide the proceeds.  The grandson then intervened as a party asserting his right to the 2.2 acres.  The trial court considered the evidence on a motion for summary judgment and held in favor of the heirs thereby rejecting the grandson's contention that his claim fell within an exception to the requirement that transfers of real estate have to be in writing under the Statute of Frauds.

On appeal, the Georgia Supreme Court affirmed the decision of the trial court.   The appellate court first noted that an exception does exist to the Statute of Frauds that could have allowed the grandfather to do what his grandson said, which was to give him the property without a deed: 

In this connection, an equitable exception to the Statute of Frauds (OCGA § 13-5-30 (4)) is contained in OCGA § 23-2-132, which provides in relevant part that equity will decree the specific performance of a parol agreement for land if “possession of lands has been given under such an agreement, upon a meritorious consideration, and valuable improvements have been made upon the faith [of the voluntary agreement or gratuitous promise of the donor].”

 (Jones, Slip Op.)

The court went on to examine the evidence and found that the grandson had failed to actually show that he had given a meritorious consideration or that he had shown improvements to the land made in reliance on the gift.   The grandson had argued that he moved a mobile home on to the property.  The Court, however, found that the home was mobile, was not a fixture, and was not an improvement to the land itself since it could be removed at will.  Accordingly, the appellate court upheld the decision of the trial court issuing summary judgment to the heirs.

The Case for the 2011 SPLOST in Forsyth County, Georgia

One of the items on the election ballot in Forsyth County, Georgia on November 8, 2011 is the SPLOST, Special Purpose Local Option Sales Tax, which seeks to raise money for a new jail and courthouse for the county.  There is no question the sales tax should be approved.

In general a sales tax operates differently from an income tax in that it is not progressive in nature and does not penalize anyone.  A SPLOST is a form of a sales tax that is often used in a Georgia county to help fund essential government services such as schools, fire stations, or court houses.

Surveyor's Testimony May Prove Property Ownership

In cases involving disputes over the ownership of land between adjacent landowners, various methods of proof of ownership are available to the parties.  In the opinion in Wallis v. Porter, Case No. S11A0913 issued November 7, 2011, the Georgia Supreme Court upheld the decision of a trial court in Union County in which the prevailing landowner offered various forms of evidence including testimony from a surveyor qualified as an expert witness.  The Georgia Supreme Court, which is an appellate court sitting in a review capacity on appeal, held that the standard of review only required a showing that "any evidence" existed to support the ruling of the trial court.  The appellate court held that it was not sitting in a capacity to reweigh the evidence.

Challenges to Decisions on Conditional Use Pemits Under Zoning Ordinances

In Georgia, a conditional use permit, also known as a special use permit or a use permit, is a type of zoning permit that a land owner must seek for certain, listed uses of property that are not generally allowed a a matter of right within a zoning district, but are allowed following an application and permit process designed to ensure that the listed use will not negatively impact neighbors.  Zoning ordinances create criteria or guidelines that the local government must consider on an application for such a permit.  Developers, land owners and neighbors are often faced with consequences related to the grant or denial of conditional use permits of land.   Challenges to decisions of boards of commissioners or city councils are difficult for the party that lost its position before a board or council.   The standard of review is the main obstacle to a court appeal.  See City of Atlanta v. Wansley Moving & Storage Co., 245 Ga. 794, 267 S.E.2d 234 (1980).

Smart city and county attorneys take advantage of a line of Georgia appellate decisions to frame zoning ordinances  in a way that takes advantage of the standard of review.  Under an ordinance in which the decision to grant or deny a conditional use permit is ultimately left to the discretion of the governing authority, the standard of review that a court applies on an appeal of such a decision requires the appellant to show that the decision of the legislative body was arbitrary and capricious, or constituted a gross abuse of discretion.  Any evidence supporting the decision of the body is sufficient to show that the decision was not arbitrary and capricious or a gross abuse of discretion.   The court looks at the sufficiency of the evidence before the legislative body in addressing this issue, and does not consider new evidence.

Examples of how the standard of review makes for a hard argument in front of a trial court on an appeal of a decision of a legislative body on an application for a conditional use permit can be imagined from either the viewpoint of the applicant for the conditional use permit, or from the viewpoint of the opponents, which are typically neighboring land owners.   For example, where a board or council denies such a permit under an ordinance that leaves the consideration of a conditional use permit to the discretion of the legislative body, the applicant developer seeking to appeal the decision to a court must show that there was no evidence that supported the decision, making it arbitrary and capricious, or a gross abuse of discretion.   Or, where a group of neighbors seeks to fight a grant of a conditional use permit by a board of commissioners or city council under an ordinance that leaves the matter to the discretion of the legislative body, the challengers must show that there was no evidence to support the grant of the application.   Either showing is tough on appeal to superior court.

Conditional use permits are often required under zoning ordinances for churches, schools, and other uses that are commonly institutional in nature, but are sited in or near residential use districts.  Residential uses are commonly thought of as incompatible with institutional uses due to traffic, noise, and congestion.    Of course, the residential neighborhoods themselves create the users and demand for churches and schools that service the residents of the neighborhoods.  Zoning ordinances use conditional use permits to balance the needs of the neighbors against the impacts from the uses.

Construction Damages Measured at Time of Loss

In a case asserting damages to real property due to defects in construction, the measure of damages is the cost to repair the problem, or alternatively, the diminution in value of the property as measured at the time of injury.  In the recent case of Pollman v. Swan, Appeal No. S10G1989 (Slip. op., Ga. Oct. 3, 2011), the Georgia Supreme Court followed this rule and affirmed a decision of a trial court and an opinion of the Georgia Court of Appeals dismissing a claim for construction damages.   The Court held that evidence of the sales price of the property in 2008 as measured against the purchase price years earlier was not evidence of the diminution of the value of the property at the time of injury in 2004.   Since the plaintiffs did not introduce any evidence of the cost of repair of the property, the plaintiffs could not maintain their claims.  

A similar rule applies in other real property related cases where a plaintiff is claiming damages.  For example, there are cases in Georgia that apply a similar rule to nuisance claims.  On the other hand, one difference in the range of recovery of damages for the tort of nuisance is that -- except in cases against counties -- plaintiffs can recover general damages and mental distress damages related to the interference with the enjoyment of the property.  These damages are recoverable based on the enlightened conscience of the jury.  However, it is still important to show some special damages related to repair costs in such cases. 

Ante Litem Notice Not Required for Open Records Act Suit

The Georgia Supreme Court on September 12, 2011 issued an opinion in City of Statesboro v. Dabbs, Case No. S11A0760, holding that a plaintiff does not have to give a city prior written notice of the plaintiff's intent to bring suit for a violation of the Open Records Act, O.C.G.A. Section 50-14-1, et seq. The Court also upheld an award of attorneys' fees and expenses to the plaintiff for the costs of bringing suit. The Court held that the ante litem notice provisions barring suit against the government only applied to suits for injuries to damages or property. Accordingly, a plaintiff bringing suit to enforce the Open Records Act need not file a demand prior to suit giving the city an opportunity to adjust a claim for failure to provide public records.

The Open Records Act in Georgia requires cities and counties to make all of their records open to the general public. Under the Act, a government has three (3) days withing which to respond in writing to a demand to inspect and copy public records. This law helps to ensure that the business of government is open to all members of the public. Associations and private organizations are not generally subject to the Act.

Associations and Storm Water Management Issues

With regard to the problems with storm water management, the issues that can arise are not limited to cases in which builders have caused downstream damages for recent construction. The recent Forsyth County case in which the homeowners were represented by Don Stack and other lawyers against Pulte Home Corporation involved only one type of case that can result from storm water. There is also a developing problem in Atlanta caused by a lack of expenditures to maintain storm water pipes and detention pond dams that were installed decades ago by developers.


Once a builder and developer finish a community, they transfer their responsibility for maintenance of the community to homeowner associations or governments. In fact, associations were originally created for the express purpose to maintain storm water systems in the wake of the Clean Water Act of 1972. See Homeowner association. They were not created solely to maintain tennis courts and swimming pools.
Some modern homeowner associations and their directors have repudiated the original purpose for property associations. Some associations focus on the amenities in a community instead of focusing on the nuts and bolts of community maintenance and management. In the wake of the 2009 flooding that exposed the developing problems in Metro Atlanta, the Atlanta Journal and Constitution ran a series of articles regarding storm water problems in the Atlanta area. Among other things, the series of articles highlighted the fact that some associations and boards of directors refuse to accept responsibility for the situations in their communities. This article can be read here.


My firm represents both property owner associations and individual members regarding a variety of issues pertaining to property management, including associations' legal responsibility for their storm water problems. We are currently representing individual homeowners, as well as boards of directors of associations.  We represent competing interests on both side affecting "mega-associations" with hundreds of lots. Our goal is to  advise clients regarding the law and represent their interests where an opposing party or insurer attempts to misrepresent the law. We have multiple land cases on trial and motions calendars currently, and we routinely speak at public meetings before city councils and county boards of commissioners when we are not litigating these issues.


There are arguments to be made for each interest that we represent. When representing homeowners and individual landowners, we emphasize the fact that responsible parties have to face up to the inescapable conclusion that public infrastructure has to be maintained. If governments will not accept that financial responsibility, then it must be borne by entities such as associations that can financially assess their members. In this same vein, individual property owners cannot address the problem. Pipes cross multiple lots, water is generated from streets and catch basins that collect water from all lots. Detention ponds service all lots.
Some associations, such as a local Forsyth County association with hundreds of lots, have tried to argue that each lot owner has to maintain the part of the system on the lot. The problem with this approach is that it literally would lead to a "collapse" of storm water systems. If just one homeowner cannot afford to replace the section of a storm water system component on his or her lot, then the whole system will clog, flooding entire communities, including lot owners who had no role in causing the problem or generating the flood waters. Ultimately though, these issues are not decided on question of fairness - they are decided by the law and the courts where one party of the other refuses to accept responsibility.

Jury Awards Homeowners $2.5 Million for Drainage Problem

Jurors in Forsyth County, Georgia recently awarded homeowners $2.5 Million against Pulte Home Corporation for a drainage and erosion problem that Pulte allegedly caused on their properties. This award for a nuisance was on top of a separate attorneys' fees award of more than $400,000 assessed against Pulte for allegedly destroying evidence stored on hardrives and in email software.

The case involved a large subdivision in central Forsyth County built by Pulte during the boom in residential construction that preceded the recession. The plaintiffs contended that Pulte's failure to comply with Best Management Practices (BMP'S) and failure to maintain Pulte's property in a way needed to protect other property owners had caused the plaintiffs' properties to lose value. Among other things, these homeowners appear to have contended that the marketability of their homes and land had been affected by the builder's actions.

The case has been heralded as involving the largest award of damages in Georgia history in a case based erosion and sedimentation due to the responsible party's failure to account for the impact of its storm water runoff. It is uncertain whether this contention is accurate in that other multi-million dollar verdicts regarding erosion and storm water have issued from other juries.

The jury awarded the plaintiffs attorneys' fees and punitive damages in addition to their compensatory damages. The gross amount of the damages award exceeded the property damage claims by a large numerical factor. The case stands for the proposition that jurors value property rights in Georgia, and that even conservative jurors in Forsyth County are not hesitant to issue large verdicts against parties that allegedly fail to take care of their storm water and sediment. Pulte has announced that it will appeal the verdict.

Subdivision Homeowner Rights to Common Areas Not Cancelled by Foreclosure

Interchange Drive, LLC v. Nusloch, A11A0964, 2011 WL 3849510 (Ga. Ct. App. Sept. 1, 2011)

In a recent opinion in Interchange Drive, LLC v. Nusloch, Case No. A11A0964 (Slip Op., Sept. 1, 2011), the Court of Appeals upheld the rights of subdivision lot owners to access common areas. The Court held that notwithstanding the fact that the bank had foreclosed on the developer's rights in the subdivision, the owners of homes who bought their lots after the date of the security deed still had rights in the amenities. The Court reached this finding notwithstanding the fact that the bank had recorded its security deed prior to the date that the developer subjected the final plat to the declaration of covenants and prior to the recordation of the declaration of covenants in the deed records.

The bank had contended that the bank had perfected title under its security deed before the restrictions expressed in the covenants were imposed. Therefore, under black letter law regarding the superiority of rights under a security deed to subsequent covenants, the bank claimed the foreclosure of the security deed extinguished the covenants.

The Court of Appeals disagreed.

This case is significant in that there are a number of communities facing similar issues. Due to the recession, banks have foreclosed on the interests of developers in a large number of new developments. This case stands for the proposition that those homeowners who bought in such developments still enjoy rights in the swimming pools and other amenities notwithstanding a foreclosure on the developer and the lack of a release by the bank.

Punitive Damages Accompany Awards of Attorneys Fees

Another interesting twist to the opinion in Kitchin v. Reidelberger, A11A0459, 2011 WL 2641280 (Ga. Ct. App. July 7, 2011), was that it emphasized the law that the standard for an award of punitive damages in a nuisance case is very similar to the standard for an award of attorneys' fees to the claimant.

In Kitchin, supra, the jury had initially failed to award punitive damages when awarding the property owners their attorneys' fees in the case. The trial court then sent the jury back out to reconsider whether punitive damages should be awarded. The Court of Appeals upheld this procedure.

The case is significant in its outcome in that it shows that whenever attorneys' fees are awarded in a case of damages to land, punitive damages are also an available form of relief to the injured property owner. Accordingly, both attorneys' fees and punitive damages are a proper form of damages in a flooding, storm water, or other nuisance case.

Nuisance Counterclaim Upheld in Suit Between Property Owners

In Kitchin v. Reidelberger, A11A0459, 2011 WL 2641280 (Ga. Ct. App. July 7, 2011), the Georgia Court of Appeals issued an interesting opinion in a dispute between adjoining landowners over a collapsed retaining wall. The plaintiffs sued the adjacent landowner and a construction company. One of the defendants counterclaimed. The jury found in favor of the defendant on the counterclaim and awarded punitive damages.

The case is interesting due to its posture. However, the opinion did not explain the facts to show how the circumstances gave rise to the assertion of a counterclaim in a nuisance case.

The opinion made procedural rulings and gave some indication of the proper measure of damages in a nuisance case. The damages ruling came in the context of a review of the jury charges given by the judge. The court upheld the following charge to the jury:

I charge you a nuisance may damage a landowner. Where the nuisance is permanent and non-abatable, the measure of damages is the diminution in value of the land; however, if the nuisance or trespass can be abated, the cost to restore the premises to the pre-damaged condition is a more equitable measure of damages and may be used rather than the diminution in the market value. Where a nuisance is abatable which deprives the owner of use of his land, he can recover the diminution of the rental value of the land.

The court held the charge was an accurate statement of the types of damages that could be awarded in a nuisance action. Accordingly, where the injured property owner can restore the property by taking action, the cost of the repair is the proper measure of damages plus the loss of use of the land during the time of the nuisance. However, if there is nothing that can be done to abate the nuisance, then the measure of damages is the diminution in value of the property.

Appeal of Dispossessory Must Be Filed in Seven Days

In order to appeal a ruling in a dispossessory proceeding or eviction the tenant must file the notice of appeal in seven (7) days. This was the holding in a recent case decided by the Georgia Court of Appeals on July 29, 2011. In the opinion in Radio Sandy Springs, Inc. v. Allen Road Joint Venture, Appeal Case No. A11A1453, the court construed O.C.G.A. § 44-7-56 and held as follows:

“The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.”¹³ Under OCGA § 44–7–56, RSS was required to file its notice of appeal within seven days of the entry of the court's order. Because RSS's notice of appeal was filed more than seven days after the judgment was entered, it was untimely, and this Court lacks jurisdiction to consider the appeal.

Radio Sandy Springs, Inc., Appeal Case No. A11A1453 (Slip. Op., Ga. App., July 29, 2011).

The significance of this case is that a tenant must be aware that if the tenant is unhappy with any part of the ruling in an eviction proceeding, the tenant cannot wait to file an appeal. Appeals must be pursued promptly or they will be dismissed.

Deed Language Determines Joint Tenancy or Life Estate

On July 11, 2011 in a case that arose as a dispute between a heir of an estate and the widow of a deceased, the Georgia Court of Appeals held that title to a property remained in the widow. Greene v. Greene, Appeal No. A11A0078 (Slip Op., Ga. App., July 11, 2011). The heir argued that the language of the deed left the property partly to the estate of the deceased, which would have meant that the heir or heirs would have received a share of the title to the land. The surviving spouse argued that the property was titled in her name exclusively following death. She contended the deed created a joint tenancy with a right of survivorship.

The trial court agreed with the widow and held title vested in her on death because the deed created a joint tenancy with a right of survivorship, and under such an instrument the title of the dying joint tenant passes outside of the estate to the other joint tenant -- similar to a payable on death account. The Court of Appeals agreed the widow owned the property; however, it held the deed created a joint life estate, and that the widow received a remainder interest in the property on the death of her joint tenant in the life estate.

In reaching its conclusion that the trial court erred in its reasoning, but not in the ultimate effect of the ruling, the Court of Appeals examined the deed under the principles for deed construction. These rules of construction are basically the same rules that apply to construction of contracts.

Foreclosure Rescission Law Upheld

On July 5, 2011, the Georgia Supreme Court issued an opinion upholding the constitutional validity of O.C.G.A. § 9-13-172.1, which authorizes the rescission of foreclosure sales under certain conditions. JIG Real Estate, LLC v. Countrywide Home Loans, Inc., Appeal Case No S11A0046 (Slip Op., July 5, 2011). The case had been brought by a buyer of a home at a foreclosure sale that took place notwithstanding the homeowners' loan modification with the bank. The court refused to find that the law was void for vagueness.

Challenge to Land Title Requires Proof of Own Title

In order to prevail on a slander of title and quiet title claim, a landowner must not only prove that the adverse claim of title fails, but also must prove that his own title is superior.  In the opinion in Ray v. Hartwell Railroad Co., the Georgia Supreme Court dismissed an appeal of a superior court's decision upholding a special master ruling on a quiet title action on the grounds that the claimant had failed to perfect its own title -- before attacking the title of the respondent in the action.  Ray v. Hartwell Railroad Co., Appeal No. S11A0459 (Slip op., Ga., June 27, 2011).  

Dawson County Motor Sports Park Becoming More Likely

A motor sports park is becoming more likely in Dawsonville, Georgia following the decision of a Judge of the Dawson County Superior Court rejecting the plaintiffs' petition for a temporary injunction.   In a lawsuit filed by the neighbors against Jeremy Porter's development, the neighbors contend that the park is an impending nuisance that will destroy the value of their horse farm.  The plaintiffs filed the suit after the City of Dawsonville engaged in a series of actions over several years that culminated in the rezoning of property in the central part of the county.

The park began in theory several years ago when the City of Dawsonville commenced to incorporate county land along Georgia Highway 53 and Georgia Highway 183 into the city limits.   At that time, some county residents opposed the moves contending the City intends to permit rezonings in the area to accomplish land uses that the county commissioners would not allow, include the construction of a race track and a local airport.   However, the opposition fell short as many residents of affected communities such as Big Canoe, Georgia were unaware of the City's expansion plans.  There are some reports that construction at the racetrack can be heard already in the Big Canoe area.

Electric Utility Subject to Nuisance Claim for Spraying Easement with Herbicide

On June 27, 2011,  the Georgia Supreme Court held that an electric membership corporation (an "EMC") could be held liable for a nuisance for cutting a swath through a landowner's trees and spraying the area with herbicide.  Daniel v. Amicalola Electric Membership Corporation, Appeal No. S11A0019 (Slip Op., June 27, 2011).   The court reached this holding after making a series of procedural and substantive findings regarding nuisance claims against power utilities arising from the electric company's alleged mistreatment of property.  

In Daniel, the plaintiffs sued the EMC when they discovered that the EMC had cut a swath of trees down on their property and had sprayed the area with herbicide.  In the facts under scrutiny in the opinion in Daniel, supra, the EMC had allegedly cut a 750 foot long by 49 foot wide path through the plaintiffs' woods.  When the property owners discovered the alleged intrusion, they called the EMC representative, who came out and assured them no further acts would be taken until the EMC resolved the issue of the existence of an easement.  Later, the EMC entered the property and sprayed the area with a plant killing substance used to maintain power line easements.   The plaintiffs sued the large company for a nuisance, trespass, and conversion.

The at issue on a motion for summary judgment by the EMC showed that the EMC had attempted to revive an old power line easement that it had abandoned more than ten (10) years before the events at issue.

Award of Attorneys' Fees Requires Actual Damages

In the recent opinion in Benchmark Builders, Inc. v. Schultz, Case No. S10G1141 (hereinafter referred to as "The Benchmark Case"), the Georgia Supreme Court answered the question where a jury award of attorneys' fees on a counterclaim without awarding any actual damages constituted reversible error in the absence of an objection to the verdict form.   The court held such an award is void, and that a party does not have to object to the form of the verdict in order to preserve the error for appeal.

How Long Does a Property Owner Have to File a Nuisance Claim?

The Georgia Supreme Court examined the issue of the time for bringing a nuisance claim against a public utility creating a nuisance in its opinion in Oglethorpe Power Corp. v. Forrister, Case No. S10G1244, issued on June 13, 2011.  In its decision, the court discussed the difference between a permanent nuisance, and a nuisance that is not considered permanent, and the impact of the defined difference on how long a neighbor has to file a claim for damages.  The court held that a power company creating a noise nuisance was deemed to be a permanent nuisance, but that a change in the nature of the aggravating noise at a certain point in time could trigger a new cause of action.   Accordingly, while the plaintiffs had filed their claim too late in arguing that the electric utility was a nuisance in general, the court held the plaintiffs did have a claim for the added nature of aggravation that occurred when plant changes were made within the four (4) year statute of limitations.   The court's exposition of the logic it employed is excellent; many nuisance principles are explained in an understandable way.  But the opinion will undoubtedly lead to confusion.

Any attempt to understand the opinion requires an examination of the difference between a continuing permanent nuisance and a nuisance that is deemed continuing, but abatable.    A continuing nuisance is any condition causing noise, aggravation or injury to another land owner that occurs repetitively over time due to conditions on land.   For example, a stormwater condition damaging a down hill owner from construction of a detention pond on a property may be deemed to be a continuing nuisance.

Continuing nuisances can be deemed permanent or abatable.  Where the defendant's injury causing property can be modified or returned to its pre-nuisance condition, the condition is deemed abatable.  An abatable condition is simply one that can be stopped.

Where the defendant's condition on its land cannot be abated, then in such a case the law deems the condition to be permanent.  In the most simple terms, a permanent nuisance exists where it would hurt public policy interests, or where it would be too difficult or expensive to stop it.

Ante Litem Notice Runs from Single Event Causing Injury

In the recent court of appeals opinion in City of Ashburn v. Ivie Mini Warehouses, Inc.,  308 Ga. App. 306 (2011), the Georgia Court of Appeals addressed the six (6) month ante litem notice that applies against municipalities in relation to a claim involving the collapse of a brick wall on one property on to another.  The court held that in instances where the event causing injury is a single occurrence, the injury triggers the ante litem notice period on the date of the event.  Accordingly, the claims of the plaintiff in the case were barred because the plaintiff did not send a notice of its intent to file suit for its injuries to the city until more than six (6) months after a wall collapsed on to its property.   The continuing injury theory of nuisance and trespass was not applicable since the wall collapsed an ended the tort with damages.  The theory of tolling did not apply because the plaintiff knew of the injury almost immediately on the date of the wall collapse.

The opinion in City of Ashburn, involves facts that clearly explain the application of the ante litem notice to continuing torts as opposed to torts that arise from single events.

A Nuisance Arises Due to a Condition on a Neighbor's Property - Alligator Meets Lawyer

In the recent Georgia Court of Appeals opinion in Landings Ass'n, Inc. v. Williams,  Case Nos. A10A1955, A10A1956. (Ga. App., March 25, 2011), the surviving relatives of a woman sued a property owners association for nuisance and other claims arising out of a fatal alligator attack.  Among other things, the court dismissed the nuisance claim holding that a nuisance claim arises where a use or lack of maintenance of one person's property interferes with another person's ownership of another tract.  The court held the agent causing injury must emanate from the defendant's property.   In that case, the alligator was not deemed to be such an agent of injury even though the evidence indicated the alligator may have lived in the association's lagoon.

Forged Deeds Do Not Convey Title

In the opinion in Aurora Loan Services, LLC v. John Macelray Veatch, Admr.,  Appeal Case No. S10A1725 (March 18, 2011), the Georgia Supreme Court reaffirmed the principle that a forged deed is a nullity and cannot convey title to an innocent purchaser for value.  The facts recited in the case indicated that a financial institution had tried to enforce a security deed that it had received from a party receiving title from an estate under a forged deed.  The estate administrator sought to invalidate the mortgage lien on the grounds the financial institution had taken its security deed under a chain of title initiated by a forgery.

The supreme court noted that it had recently overruled authority in Georgia that had indicated that a bona fide purchaser for value without notice of a forgery could show good title.  The court held that forged deeds are nullities and can never give title.

Georgia Supreme Court Finds No Loopholes in Statute of Repose

In the legal opinion of Rosenberg v. Falling Water, Inc., Case No. S10G0877 (March 18, 2011), the Georgia Supreme Court held that the eight year statute of repose for bringing an action to recover for construction defects barred a personal injury victim from suing for physical injuries caused by a collapsed deck more than ten years after the issuance of the certificate of occupancy for the house.  The court rejected the idea that O.C.G.A. Section 9-3-51applied only to construction defects and did not extend to actions for personal injuries.

A statute of repose is a special statute of limitations that cuts off all possible claims after a statute of limitations has expired.  While four and six year statutes of limitations may apply to claims for defective construction, there are exceptions to the underlying statutes of limitations that can extend the operation of the statute of limitations, such as where a defendant conceals the defect.   The statute of repose then steps in to cut off the exceptions to the statute of limitations after another extended period so that a plaintiff cannot come back decades later and pursue a construction defect claim.  

In Georgia, the statute of repose for construction defects protects industry professionals from eternal liability for building structures that may last for a long time.   It applies to architects and engineers as well as builders.

This opinion of the court should be footnoted in that it was issued by a court divided 4-3.  

Georgia Supreme Court Upholds Offer of Settlement Statute in Nuisance Case

In the opinion in the case titled O'Leary v. Whitehall Construction, Appeal Case No. S10A144 (Georgia Supreme Court, March 18, 2011) (the "Whitehall Case"), a unanimous court affirmed an award of attorneys' fees under O.C.G.A. Section 9-11-68, the Georgia Offer of Settlement Statute, to the defendants - a builder and lot owner and one of its limited liability company members - who were accused of flooding the property of an adjacent downhill neighbor with sediment and stormwater during construction of a home in 2004.

In the Whitehall Case, the defendants won a jury verdict of no liability.  The Plaintiffs had argued for more than $250,000 in damages and fees after their property flooded during the heavy rains of the Summer of 2004, which included rains from Hurricane Ivan.  After the defense verdict, the defendants moved for fees under the Offer of Settlement Statute adopted by the Georgia General Assembly in 2005 and modified in 2006, and the trial judge in Forsyth County Superior Court awarded the defendants $60,291.52 for their fees incurred subsequent to rejection of the offer of settlement.

Counties Have Discretion to Abandon Roads

In an opinion issued on February 28, 2011, the Georgia Supreme Court reviewed a trial courts entry of an injunction against a board of county commissioners preventing them from abandoning a road.  Scarborough v. Hunter, Appeal Case No. S11A03476 (Feb. 28, 2011).   The plaintiffs, who were presumably landowners affecting by the road abandonment, filed suit against the Stephens County Board of Commissioners to prevent them from abandoning Winding Bluff Road as a county road, thereby returning title to the road to the landowner(s) along the road.    The Stephens County Superior Court issued an injunction against the abandonment before it was completed.  The Georgia Supreme Court reversed.

The case stands for two important propositions.  First, the court emphasized that a county board of commissioners has discretion to make a determination that a road is no longer needed by the public.  Second, the court held that a court should confine its review of a road abandonment matter to the point in time after the abandonment.  In other words, a court should not enjoin the abandonment before a board of commissioners has a chance to follow through with the statutory procedure for an abandonment.

Creditors and Plaintiffs May Void Transfers of Property Intended to Defeat Creditors

In a case captioned Bishop v. Patton, the Georgia Supreme Court addressed Georgia's Uniform Fraudulent Transfer Act, O.C.G.A. Section 18-2-71, et al. (the "UFTA"),  in the context of the claims against a man who had murdered the relative of the plaintiffs.  The court examined the facts of the case under a multi-factored approach under the UFTA and upheld a trial court's injunction against further transfers of the contents of financial accounts, while reversing the trial court's preliminary injunction against further transfers of a house.

The UFTA is an act that prevents someone who owes money or is subject to a lawsuit or claim for money from hiding or secreting his assets or giving a person close to him a preference in or gift of the assets.  The law in Georgia was adopted by the Georgia General Assembly and codifies centuries of common law regarding what constitutes a fraudulent conveyance.   Without the law, any party or debtor could simply transfer their assets away in anticipation of being the subject of a claim or lawsuit and avoid a debt.

The opinion in Bishop, supra, contains a straight forward assessment of facts of a case applying the UFTA's factors, or "badges of fraud," to review a trial court's order under the statute.  Anyone thinking about transferring their assets to a relative or other person to avoid having to pay creditors should consult an attorney about the law before doing so.  The consequence of violating the statute may cause a plaintiff or creditor to sue the person to whom a potential defendant transfers an asset.

Laches Prevents Associations and Neighbors From Stopping Construction

The principle of laches is an equitable legal doctrine that states that a person cannot stand by while another person spends money or effort and then complain later about the result.   In Waller v. Golden, Appeal Case No. S10A1598 (Ga. Supreme Ct., Feb. 28, 2011), the Georgia Supreme Court issued an opinion in which it addressed the application of this principle to the Eagle Ridge Homeowners Association neighborhood.   In Waller, neighbors filed suit to enforce restrictive covenants in a neighborhood after the property owners association failed to prevent a lot owner from building a swimming pool in the side yard of a lot.

The appellate court upheld the lower court's denial of the plaintiffs' request that the trial court enjoin the removal of the pool through a permanent injunction.  The courts found that laches applies when a neighborhood or its association wait to enforce covenants until after a lot owner has spent considerable money and effort in building a structure on a lot.

Georgia Supreme Court Issues Recent Stormwater Case

On February 28, 2011, the Georgia Supreme Court issued an opinion relating to stormwater management issues.  This opinion involved general civil procedure affecting the addition of parties to a proceeding. However, the opinion in Nashville Restaurant Management LLC v. Gwinnett County, Appeal Case No. S10A 2072 (Ga. Supreme Ct., Feb. 28, 2011), (the "Sinkhole Case") also provides insight for remedies in stormwater cases.

The facts of the lawsuit underlying the opinion in the Sinkhole Case involved a sinkhole that appeared due to the collapse of a storm water structure in Gwinnett County, Georgia.  The lower court added the adjacent property owner as a party to the lawsuit without giving the party an opportunity to address its level of responsibility for the sinkhole.   On the same day that the trial court ordered the county to invest in repairing the cause of the sinkhole, the court also added the adjacent property owner to the suit and ordered the new party to pay a proportionate cost of the repair.  The fault of the trial court was in failing to provide the new party the necessary time to contest its involvement in the matter.  This error led the appellate court to reverse the relief order.

The Sinkhole Case stands for the proposition that new parties to equitable proceedings are generally entitled to notice and opportunity to be heard before relief is entered against them.   The case will return to the trial court for reconsideration of the remedy after hearing from the adjacent owner.

Sandy Springs Enforcement of Property Owner Maintenance Ordinance

The City of Sandy Springs, Georgia has apparently started to enforce the ordinance it recently adopted requiring property owners to maintain storm water structures on their land.   There are reports that the City has served notices to comply on homeowners who have properties with detention ponds on them.  The City has also become more aggressive towards property owner associations in the maintenance of detention ponds.   While the Georgia courts have recently upheld property maintenance ordinances, the legality of requiring a person to maintain a public structure is up for debate.

Parties Responsible for Detention Ponds Cannot Contract Away Liability

Associations and developers will often attempt to hang responsibility for maintenance of detention ponds and storm water drains, pipes, and structures on homeowners in order to defeat their liability for negligent construction.  Provisions of covenants and contracts that attempt to engineer such a result should be void where the effect of the provision is to evade all liability, including liability for the association or developer's own negligence in constructing, changing, repairing or maintaining the structures.

Georgia Supreme Court Issues Case Regarding Taxpayer Redemption Right

Under Georgia law, on failure to pay property taxes, a local government may acquire a lien on the subject real estate. The lien can be foreclosed upon and the taxpayer/landowner can lose title.  The foreclosure of the lien, however, is subject to the taxpayer's right of redemption.  This means the taxpayer gets a second chance to pay -- with penalties of course.   In the opinion in Community Renewal and Redemption v. Nix,  Case No. S10A1727 (Jan. 10, 2011),  the Court held that the right of redemption must be exercised within twelve months of the tax sale of the property or within 12 months after the sale and the foreclosure of the right of redemption by the buyer.  If the delinquent taxpayer or a successor in interest fails to tender the required amount to the buyer at the tax sale within the required time, the right of redemption is lost.  The new owners then acquire an indefeasible title to the subject property.  

The delinquent taxpayer's successor in interest lost the land in Community Renewal and Redemption v. Nix, because it apparently failed to tender the correct amount of the redemption price (the unpaid taxes plus a statutory penalty) to the correct owner and tendered it to the wrong party.    Community Renewal and Redemption, LLC bought the property from the delinquent taxpayer under a quitclaim deed, but then lost its title by failing to strictly adhere to the steps for redeeming it.

Accordingly, if a property owner is subject to a tax lien, the owner needs to take care that he or she takes the correct legal steps under Georgia Property Law to tender the unpaid taxes to the correct party and within the statutory deadlines.

Teague & Zeliff, LLC