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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, July 30, 2013

Georgia Supreme Court Upholds Discretion of County to Abandon Road

In Scarborough v. Hunter, S13A0060 (July 11, 2013), the Georgia Supreme Court upheld the discretion of a North Georgia county to abandon a public road due to the expenses that would have been incurred to maintain the road.   The court relied on an application of the language in O.C.G.A. 32-7-2(b)(1) including a 2010 amendment by the state legislature.  The decision held that the trial court had committed an error in overruling the abandonment.

The appellate court held the statute gave the board of commissioners of the county discretion to abandon the road where the facts indicated problems in the road existed that were traceable to a developer's alleged failure to properly construct the road prior to dedication and acceptance by the county.

The Supreme Court also went on to apply new language in the abandonment statute that was enacted in 2010 by the Georgia General Assembly.  The legislature added language to the abandonment law that now enables local government to abandon roads when to do so is deemed otherwise in the public interest.   The prior version of the law required the showing of a substantial public purpose.  The old language had given local governments pause in exercising their abandonment powers.

Friday, July 5, 2013

Approaches to Residential Storm Water Management - Part I, Description of Possible Problems

This part one of a series of posts will summarize various approaches to management of storm water problems by homeowners, farmers, and other raw land owners who may experience flooding and drainage problems around their homes and property.  These posts are not intended to recommend litigation or any one approach, but simply to educate people as to what they might do to deal with these issues.   The post is written from the legal perspective of storm water responsibilities that is in effect in Georgia and some other states, and would be less helpful in states like California that may employ different legal regimes to attach storm water responsibilities.  The post is a work in progress and may be edited from time to time to eliminate rambling and add points.  

Developers build subdivisions around a model to maximize profit based on the number of lots they can sell at a price points dictated by the real estate market and the demands of buyers.  In theory, on a basic level pursuit of this model in will lead to maximization of economic benefits to everyone concerned - the raw land owner that supplies the land, the developer, builders, real estate agents, and home buyers.   But as with all theories, real world application leads to what economists may call negative externalities. What does this have to do with flooding or drainage?  It is a complicated way of saying that the way land is developed can lead to problems with dealing with the effects of  development that are not necessarily any body's moral fault, with an emphasis on the work "moral," and the words "not necessarily."  

There are various factors that relate to flooding and drainage issues that individual homeowners may experience.  The number of lots in relation to the overall subdivision geographical area defines density, or subdivision land size divided by lot number.  The density of a subdivision is directly related to the amount of impervious surfaces generating storm water, such as roofs, driveways, and streets.   The topography of the land subdivided to lots as well as the topography of land both above and sometimes below a subdivision are also factors that affect flooding and drainage.   A subdivision down hill from a commercial shopping center, offices, or other commercial uses with a high proportion of rooftops and asphalt parking in relation to land area will experience more drainage and flooding issues if the water is directed through the subdivision by the topography.   Water flows down hill.  

Monday, July 1, 2013

Bank Can Seek Immediate Relief to Remove Commercial Property Owner

In Alstep, Inc. v. State Bank & Trust Co., Case No. S13A0117 (Ga., July 1, 2013), an opinion issued today, the Georgia Supreme Court addressed circumstances in which a commercial gas station owner refused to vacate the business after the bank foreclosed on the property.   The court also upheld the appointment of a receiver and the issuance of an immediate injunction to restrain the property owners.   The case stands for the proposition that a bank can move for the appointment of receiver to avoid waste and conversion of the property and incomes from the business.

In addition, the court held that the bank could also execute its rights to collect on the loan secured by the foreclosed gas station on other property that the bank had taken as collateral.   The court held the bank was required to seek a deficiency on the loan collection -- the negative difference between the property value and the loan amount -- within thirty (30) days of the foreclosure, but this did not prevent the bank from foreclosing on other property that also stood as collateral for the loan.