A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer
Saturday, December 17, 2011
Saturday, December 10, 2011
Tuesday, November 29, 2011
Saturday, November 26, 2011
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.
Wednesday, November 23, 2011
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.
Friday, November 18, 2011
Undue influence sufficient to invalidate a will amounts to deceptionIn 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.
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).
Tuesday, November 15, 2011
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.
Tuesday, November 8, 2011
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.
Sunday, November 6, 2011
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.
Friday, October 7, 2011
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.
Sunday, September 25, 2011
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.
Tuesday, September 20, 2011
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.
Monday, September 19, 2011
Sunday, September 11, 2011
Sunday, September 4, 2011
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.
Sunday, August 7, 2011
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.
Sunday, July 31, 2011
“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.
Tuesday, July 19, 2011
Saturday, July 2, 2011
Friday, July 1, 2011
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.
Tuesday, June 28, 2011
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.
Sunday, June 26, 2011
Sunday, June 19, 2011
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.
Monday, May 16, 2011
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.
Monday, May 9, 2011
Wednesday, March 30, 2011
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.
Thursday, March 24, 2011
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.
Saturday, March 19, 2011
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.
Friday, March 11, 2011
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.
Wednesday, March 9, 2011
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.
Wednesday, March 2, 2011
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.
Tuesday, March 1, 2011
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.
Wednesday, February 23, 2011
Saturday, January 29, 2011
Friday, January 28, 2011
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