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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.

Monday, September 18, 2017

Homeowner Association Responsibility for Storm Water Maintenance in 2017

I blogged about homeowner association responsibility for maintenance of storm water drainage systems in subdivisions in Forsyth County years ago in 2009. Basically, the ultimate conclusion I expressed in my article was that under the 2004 Forsyth County Addendum to the Georgia Storm Water Management Manual, homeowner associations have a responsibility to maintain their detention ponds and storm water easements. To state that a little more plainly, I argued in 2009 that the Forsyth County Code required homeowner associations and property owner associations to fix their detention ponds and rotting pipes.

The issues in that obscure, 2009 blog post could only be of interest to people that own deteriorating storm water pipes, or detention ponds. But, I assume you are interested, otherwise you probably would not have read past the title to this blog. So, I am re-harvesting my 2009 statements. However, I definitely will not repeat the reasoning of the old, 2009 article because I have to assume that if you are interested enough, you either have read the old blog entry, or that you just want to cut to chase and find out what the law is now. If neither is the case, then please just stop reading and spend your Internet time on sites more worthy because we are about to delve deeply into the weeds of storm water law.

Wednesday, August 2, 2017

Agents Who Participate in Creation of a Nuisance Can Be Liable with their Principal


     The principles relating to nuisance liability apply to the persons that create the nuisance along with developers, builders, and property owner associations for whom they act. Under Georgia law, a person that makes decisions that cause a nuisance cannot claim some special insulation from responsibility by reason of employment or agency for another. So for example, if a property management agent is negligent in making decisions regarding management of a storm water system to the detriment of a property owner, the agent can be liable just like the principal for whom the agent may be working. Each person or entity, including even shareholders of company actors that have control over the creation or continuance of damage to property might be liable. Sumitomo Corp. of America v. Deal, 256 Ga. App. 703, 707 (2002). “One damaged by the tort of a corporate agent may sue the individual agent, the corporation or both.Foxchase, LLLP v. Cliatt, 254 Ga. App. 239, 241 (2002). Liability devolves to the person or entity that has control over the decisions that cause the nuisance to happen.
     Ultimately, this was an issue for the jury to decide in light of the scope of the agent's authority to make a decision. Because the scope of agency involves mixed questions of law and fact, “[t]he agent's authority as well as his negligence . . . are jury questions . . ..”  Warnock v. Elliott, 96 Ga. App. 778 (1957). In determining the extent of the agent’s authority to ascertain if it had committed misfeasance thereby subjecting it to liability, the agency cannot “be established by declarations of the agent alone.” Warnock v. Elliott, 96 Ga. App. 778 (1957).