Subdivision Easements in Georgia

Subdivision Easements in Georgia

Georgia Law Regarding Subdivision Easements

Georgia law grants subdivision homeonwers easements regarding certain features identified on subdivision plats, including streets, parks, and lakes. Such designations on a plat conveys an intent by the original developer to grant an easement to all lot owners in a subdivision.

Tucker v. Brannen Lake East

The Georgia Court of Appeals looked at this issue in Tucker et al. v. Brannen Lake East, LLC, A23A1265 (January 29, 2024). In Tucker, the dispute involved use of a lake in a subdivision. A homeowner purchased a lot in the subdivision next to a lake. At the time of purchase, neither the deed to the buyer, the subdivision plat, nor the lot survey showed any restriction related to use of the lake. After purchase, the homeowner used the lake with no issues until the lake owner (another property owner) told the owner that he could not use the lake.

The lake owner claimed an earlier deed to the homeowner’s property contained what is called a “restrictive covenant.” A restrictive covenant is language in a deed in which the seller limits the purchaser’s future use of the property. Here, the lake owner claimed that an earlier deed restricted use of the lake.

Court Decided Homeowner Could Use Lake Despite Alleged Restrictive Covenant

The Court of Appeals confirmed that Georgia law has long recognized that when a developer conveys lots concerning a subdivision plat, the buyers may receive easements in certain features—mostly streets and parks—designated on the plat. Usually, identifying an easement on the subdivision plat is enough, absent contrary evidence in the plat or deed, to grant an easement in the features to lot owners who bought with reference to the plat. Examples are streets, parks, and lakes (which are treated similarly to parks). So if a subdivision plat shows a park, arguably, everyone in the subdivision has an easement to use the park.

The Court explained that:

These features share two things in common with the first being that there is simply a well settled understanding, reflected in more than a century of our decisions, that when these basic features are designated on a subdivision plat, there is ordinarily no reason to doubt that they are included as part of the unified plan for the subdivision and meant for the lot owners’ use. Second, and equally important, these are the sort of features for which designation or delineation on the plat alone can give reasonable certainty about the scope of the easement granted. Simply put, settled expectations rooted in more than a century of practice and the relative ease with which the scope of an easement in these features can be discerned support a strong presumption that designating these features on a subdivision plat conveys an intent to grant an easement to lot owners who buy with reference to the plat.

(citation and punctuation omitted).

The guiding principle in the case is that with regard to restrictive covenants, the “legal presumption is in favor of the free use of the property by its owner, and any doubt will be construed in favor of the owner.” The Court examined the actual restrictive covenant in the earlier deed and determined that the deed had contradictory language. Therefore,

the seemingly contradictory language between the October 21, 1993 deed and the Summary of Conditions and Restrictions as to the property subject to those conditions and restrictions cannot justify terminating Tucker and Marsh’s use of the lake—especially in light of the Brannen Lake subdivision plat explicitly referenced in their 2015 deed.

If you have any questions about subdivision easements or restrictive covenants, call us at 404-382-9994 to discuss.

In Georgia, Parol Evidence Admissible When Deed Includes Phrase “Other Valuable Consideration”

Quit Claim Deed

If you have bought or sold real estate in Georgia (and elsewhere), you have certainly seen the “purchase price” described in most deeds as follows:

Grantor, in consideration of One Dollar ($1.00) and the purpose recited herein, in hand paid at and before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, by these presents does remise, convey, and forever QUITCLAIM unto said Grantee, the below described tract or parcel of land more fully and completely described as follows …

But what does “For value received” or “Ten dollars and other valuable consideration” mean, why is it used, and why isn’t the actual purchase price included in the deed? The nominal amount of one dollar (or ten dollars) is included to satisfy the consideration requirement to make a deed enforceable. Consideration means payment: one dollar or ten dollars satisfies this consideration requirement. The author has looked into why this is done and believes buyers and sellers use this language to conceal the price paid for the property on the public record. These deeds are recorded and available to the public. Using one dollar or ten dollars as the purchase price makes it more difficult to know the actual purchase price. Although the transfer tax can often determine the purchase price, this is not foolproof and adds another layer for an inexperienced examiner. Regardless of why it’s done, this language is used in virutually all deeds, including quitclaim and warranty deeds.

This issue came up recently in an interesting case. Please see Schaffer v. Collinsville Meadow Townhomes, A23A1382 (January 24, 2024). In that case, a seller quitclaimed his interest in property for “One Dollar ($1.00) and other valuable consideration, receipt whereof is hereby acknowledged.” Of course, a dispute arose, which included the seller claiming he had not been paid for conveying the property via the quitclaim deed.

The issue relevant to this blog was whether the seller could sue the buyer for nonpayment when the quitclaim deed did not include an actual purchase price. The Court of Appeals ruled that because the deed included the language “other valuable consideration,” the seller could introduce evidence outside the quitclaim deed to establish the purchase price. Such outside evidence is known as parol evidence. Succinctly stated, the Court explained that

As our Supreme Court has explained, the manner in which consideration is expressed in the quitclaim deeds [the seller] conveyed is a classic example of consideration merely by way of recital; and as a result, the details of such consideration are properly subject to further inquiry.

If you have any questions or are in a dispute regarding a real estate deed in Georgia, please get in touch with us at 404-382-9994 to discuss.