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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, January 31, 2012

Adverse Possession of Family Land

In Georgia a person may show adverse possession to land, also sometimes called "Squatters Rights," if he can show that he satisfied various elements for proving it.  The showing is fairly complicated, and one has to consult an attorney to get an idea if his circumstances might warrant title via adverse possession.  Stories that lead to a claim adverse possession often involve families living on farm land.

In Defoor v. Defoor, Case No. S11A1977 (Ga., January 23, 2012), the Georgia Supreme Court considered a classic case of adverse possession of property in the mountains in North Georgia.  A grandmother, Millie, had record title.  Although she had nine children, she continued to live on the farm with one of her son's families after her husband died.  Eventually she died, and one of her grandsons ended up in control of the property after his own parents died.  All of this occurred without a change of title on the Gilmer County real estate records.  Finally, a timber company wanted an easement on the land from the grandson.

The easement sale required the grandson to show that he had title before he could give the timber company good title to an easement.  The timber company offered to pay his attorneys' fees and other compensation for the easement, and the grandson filed a petition to quiet title against all of the descendants of his grandmother Millie based on a claim of adverse possession.  The other descendants to his grandmother Millie were co-tenants and had a claim to the property not shown on the Gilmer County deed records.  Their claims had to be extinguished before the grandson could profit from the sale to the timber company.

In Defoor, supra, the grandson was able to meet the requirements for showing that he owned the land via adverse possession.  The grandson was able to show that he and his parents had possessed and maintained the property for more than the twenty years.   He also met the other elements for adverse possession by proving, among other things, that he had possessed and maintained the land in the way Georgia law requires.   The claims of the many descendants of the nine children of Millie were extinguished.

Saturday, January 28, 2012

How Wills Are Proven Valid

In the opinion in Mason v. Phillips, decided January 23, 2012, the Georgia Supreme Court addressed an issue in a dispute between parties regarding the validity of a will discovered sixteen years after the death of the will's author.  Mason v. Phillips, Case No. S11A1951 (Slip Op., Ga., Jan. 23, 2012).   The will was even older.  The testator had made the will in 1974.   Given the age of the will and the delay in advancing it for probate, the witnesses to the will were no longer available.  Ultimately, the testator failed to prove the will was valid.  The dispute regarding the will at issue in  Mason v. Phillipssupra., was determined by old versions of the Georgia Probate Code.

In modern practice, estate attorneys will use an instrument called a self proving affidavit in which the witnesses to the will swear they saw the execution of the will at the same time that they signed as witnesses to the will itself.  Where a self proving affidavit does not exist, then the witnesses to the will may have to appear in court to prove that the will is valid.  The person offering a will for probate must prove the genuine nature of the testator's signature by a preponderance of the evidence using other means if the subscribing witnesses cannot be located and a self proving affidavit does not exist.  Mason v. Phillips, supra.  Because wills are often executed years before they are offered for probate, it is very important to make sure that a will is properly executed with a self proving affidavit.

Saturday, January 21, 2012

Georgia Standard for Invalidating Wills is High

A person will sometimes change his will when he enters a hospital and delete a child included in a past will from the new will.  The excluded child may then seek to challenge the change in the will claiming it was the result of undue influence, coercion, or an unsound mind.   Such changes, which can be made at a time of extreme physical duress of the testator affecting his thinking, can have devastating effects.  However, the cases in Georgia regarding the burden of proof that a challenger must meet make it difficult for the newly excluded child to invalidate the new will.  The Georgia Supreme Court started out 2012 with two cases regarding this issue.  First, the recent case of the Georgia Supreme Court in Prine v. Blanton, Appeal Case No. SA11A1315 (Jan. 9, 2012), reiterated the rules that create this high burden on persons seeking to challenge the will.

Sunday, January 8, 2012

Contempt Is the Remedy to Enforce Injunctions regarding Easements

Parties to court proceedings involving private rights of way or trespass sometimes question the power of a judge to tell them to do something.  Sometimes people do not take the orders of a court seriously and act in a recalcitrant manner to test whether a judge will enforce his order.  However, a Georgia Superior Court Judge is one of the most powerful officials in Georgia and has the power to fine and incarcerate parties who do not violate his orders.