Incorporation by Plat Does Not Establish Ownership Contrary to Deed Description

Sometimes a legal description to land in a deed does not match up with what is shown on a recorded plat.  When this happens, the deed description prevails.  In Washington v. Brown, the Georgia Supreme Court issued an opinion rejecting a claim of title to land based on a referenced plat on the grounds the land in the plat did not match the legal description in the deed.  Washington v. Brown, Case No. S11A1551 (Fe. 6, 2012).  The court cited the 1956 case in Johnson v. Willingham, 212 Ga. 310, 311 (1), in reaching this conclusion. The court held the legal description trumped the plat reference.

The Washington case also rejected a claim of adverse possession under the shortened period for color of title.  The court held the plat reference was not sufficient to invoke color of title thereby requiring a showing of adverse possession for the longer, 20 year period.   The squatter had failed to show continuity of possession for 20 years and had to rely on the 7 year argument requiring color of title.

The most interesting part of the Washington decision was the result of the case.  The suit was between two landowners in a quiet title action.  The party losing the plat argument in the supreme court had prevailed before the special master and before the superior court -- on the appeal from the special master.  Because the special master in the proceedings below had previously ruled against the appellant's claim of title, the result of the court's opinion appears to be that both parties to the land dispute lost their claim to the disputed land! 

Written Power Line Easements Are Contracts

An easement in Georgia is a right that a person or company enjoys in relation to another person's property.  Easements for storm water pipes, drainage courses, power lines, gas lines, driveways, and roads or access often exist on or across a property owner's property.  Many times, these easements are recorded in the deed records maintained by a county.  Where easements are recorded, the courts treat the easements as written contracts between the holder of the easement and the property owner across which the easement runs.   Georgia courts have explained this principle as follows in a case involving a Georgia Power Company easement:

That written easement constitutes a contract, and express easements are construed by applying the rules of contract construction. Municipal Elec. Auth. of Ga. v. Gold–Arrow Farms, 276 Ga.App. 862, 866(1), 625 S.E.2d 57 (2005). “Generally, this [easement] presents a question of law for the court, unless the language presents an ambiguity that cannot be resolved by the rules of construction.” Id. In construing a contract, if the terms are clear and unambiguous, the court looks to the contract alone—the easement itself—to determine the parties' intent. Parris Properties v. Nichols, 305 Ga.App. 734, 738(1)(a), 700 S.E.2d 848 (2010).

Richardson v. Georgia Power Co., 308 Ga. App. 341, 343, 708 S.E.2d 10, 12 (2011), reconsideration denied (Mar. 10, 2011).

Contractual Right of First Refusal Not Compensable Under Taking Clause

In an opinion on February 6, 2012, the Georgia Supreme Court held that a condemning authority is not required to compensate a landowner for a right of first refusal of a tract of land adjacent to the tract subject to condemnation under the Taking Clause of the Georgia Constitution of 1983, Art. 1., Section 3, Paragraph 1.  Robinson v. Gwinnett County, Case No. S11A1533 (Feb. 6, 2012).   The right of first refusal of the adjacent tract had value and was part of the bundle of rights held, but the Court decided that the county was not required to compensate the landowners for the value of the option upon condemning the land to which the option was attached. 

Open Meetings Act Requires Record of Votes

In the opinion in Cardinale v. City of Atlanta issued February 6, 2012, the Georgia Supreme Court addressed a set of facts raising the issue whether the Open Meetings Act required a municipality to make a record of the names of members voting for and against a proposal in a poll at a retreat.  The Court's opinion stated that when members of a city council get together and float a proposal informally among the group to ascertain support for a resolution, the names of the members voting for and against the proposal must be made a public record.  Cardinale v. City of Atlanta, Case No. S11G1047 (Ga., Feb. 6, 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.

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. Phillips, supra., 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.

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.