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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, November 15, 2011

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.

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