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.