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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.

Saturday, December 10, 2011

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.

Accordingly, where a developer subdivides lots and lays out streets or utilities that are then dedicated and accepted by a governing authority, the later abandonment of the streets by the governing authority at a point in the future would not extinguish the private easements that the developer granted to lot owners who purchased their lots by reference to a chain of title with deeds referencing the original subdivision plat.  Northpark, supra; Zywiciel, supra.  The lot owners have an underlying, private right of use in the streets that cannot be extinguished by the process of abandonment.  If the governing authority conveys its fee simple interest in each one half of the streets to the adjacent property owners lying on each side of the streets, those owners still take their enlarged lots subject to the existing private easements in the streets and they cannot interfere with the use of the private easements in the streets.

This reasoning and principle is important to developers and associations alike.   For developers, it means that they cannot negotiate an abandonment with governing authorities to remove a street in the way of their development without also addressing the private rights of subdivision owners to use the streets.  The private easements would remain.

For associations seeking to privatize their streets and gate their communities, the reasoning in these cases means that they can secure road abandonment from a city or county and thereby extinguish the public's rights to cut through or use their community streets while still preserving the private easements in the streets that exist for the benefit of all subdivision owners in the community.  In other words, abandonment is a valid process by which an association can privatize subdivision streets and roads.

These cases should also be read in light of the rules in opinions in cases such as Kaplan v. City of Sandy Springs.  These opinions also look to the nature of the original developer's conveyance of title to the governing authorities in holding that there is no express acceptance of dedication of fee simple title to streets or drains by a governing authority without an express deed from the developer.   The developer's act of recording of the plat without also granting a deed to the public could only grant the public an easement that it assumes by acts of dedication acceptance.  So, without a deed from the developer to the governing authority, which is accepted, the governing authority simply takes an easement by taking over the streets or drains, and the private owners in the community also receive easements.  Consequently, the argument would be that the public process of abandonment simply abandons the public's easements without affecting the private easements.

The rule cited in Kaplan considered in connection with the Northpark rule leaves open the question, "Where did the fee simple title to the road beds go?"   One argument might be that the developers still retained title to the road beds.  Another might be that the developers somehow impliedly conveyed larger lots than shown on the plats to each lot owner adjacent to the streets while conveying express easements to the private lot owners and public easements to the public.  The latter argument of course contradicts the title shown in the lots owners' deeds.  In any event, the fee simple title to the road beds is muddled, and would only arise as an issue regarding liability or who is responsible for tax payments following street abandonment for the road beds.

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