Georgia: Injury to Real Estate

          The Georgia legislature has passed several statutes to protect landowners against interference with and injury to their real estate. The starting point is that enjoyment of private property is an “absolute right” of every citizen. Any interference with such enjoyment creates a tort (wrongful act or an infringement of a right resulting in civil legal liability). OCGA § 51-9-1.

            To the extent a person wrongfully deprives a landowner of possession of their property, the landowner can seek to recover possession and sue for damages for such injury to real estate. OCGA § 51-9-2. Similarly, if any person wrongfully interferes with a landowner’s possession, the landowner can seek damages. OCGA § 51-9-3.

            Likewise, if a person wrongfully enters the landowner’s land or property without permission, a landowner to bring an action for trespass for injury to real estate. OCGA § 51-9-4. Trespass applies to persons wrongfully on land and applies to such things as improperly placed improvements or causing flooding on a landowners’ property. Anyone or anything that comes onto someone’s land due to wrongful conduct of another person can be a trespass. Suppose two persons claim possession of the same land. In that case, the person with title to the land is deeming to be rightfully in possession. In contrast, the other person is deemed to be a trespasser. OCGA § 51-9-5.

            Regarding damages for trespass, such damages are limited to damages incurred up until an action is filed. OCGA § 51-9-6. Damages that occur after filing a lawsuit create a new cause of action.

            Regarding streams (more formally called non-navigable watercourses), such landowners are entitled to the natural and usual flow of the stream across their property. If a person wrongfully diverts the stream from its natural and usual flow or lessens the value of the stream, this is considered trespass. OCGA § 51-9-7. The same applies to underground streams and interference of the space below and above the land’s surface. OCGA §§ 51-9-8 and 51-9-9. The last grounds for bringing a trespass action is if a person wrongfully interferes with a landowner’s right of way. OCGA § 51-9-10.

            Finally, a landowner claims damages if any person wrongfully puts the landowners’ title to the property in question. OCGA § 51-9-11. When this happens, it is known as slander of title. An example would be if a person files a fraudulent deed on the public record and this deed causes the rightful owner’s title to be clouded. Clouded means that there is a possible issue with title. Wrongfully clouding title is considered an injury to real estate in Georgia.

            If you are a landowner and your enjoyment of your land is being interfered with or violated, please call us at 404-382-9994 to discuss your options.

Expiration of security deeds in Georgia

Do real estate mortgages expire after a certain amount of time? In Georgia, a security deed is the document that secures a loan on real estate. OCGA § 44-14-80 states that security deeds expire seven years after the maturity of the last installment date stated in the security deed. OCGA § 44-14-80 further says if the security deed contains no maturity date, the security deed expires after seven years.

When a security deed expires, title automatically “reverts” (goes back) to the borrower. In other words, if sufficient time has passed, the security deed is automatically cancelled. Most importantly, after the security deed is cancelled, the lender loses its lien against the property and cannot foreclose.

These concepts were the focus of a recent Georgia Court of Appeals case: Freeport Title & Guaranty. In that case, the parties disagreed whether a security deed had expired. The security deed had a space to insert a due date, but, whoever drafted the security deed, left the space blank. One party argued that the security had expired after seven years because the security deed had no maturity date. The other party responded that omitting the due date was a mistake. Instead, that party argued that the borrower and the lender had intended to include a due date.

The Georgia Court of Appeals found that the security deed had not expired after seven years. Even though the parties had not included specific date in the security deed. The court reasoned that the parties had intended to include a fixed date. In addition, the Court of Appeals ruled that the promissory note, which did include a due date, could be used to “fill in the blanks.”

The takeaway, when evaluating whether a security deed in Georgia has expired, is to consider the promissory note and the security deed . However, unlike security deeds, lenders do not record promissory notes on the public record. So getting a copy to review may be challenging.

If you have a question about a security deed, please call us at 404-382-9994 to discuss.

Wrongful Death in Georgia – Who Makes the Claim

If your loved one has recently passed, we offer our sincere condolences. Losing a loved one is tragic, but at some point, the living must go on living. This means educating yourself regarding your family’s legal rights in order to make a full recovery on behalf of your loved one.

If your loved one’s death was caused by the negligence of another, who is entitled to make a claim? A claim may include include funeral expenses, medical expenses, pain and suffering before your loved one’s death, and the value of your loved one’s life that has been cut short?

To understand who can make a claim, we must first understand that Georgia law allows two different claims following a wrongful death: one is just referred to as a “wrongful death claim”, and the other is referred to as an “estate claim” or “survival claim”. The same person can bring both claims, but this isn’t necessarily the case.

Wrongful Death Claim

Under Georgia law, this claim belongs to the loved one’s spouse and children. See OCGA § 51-4-2. If the loved one had no spouse or children during their life, the loved one’s parents are entitled to make the claim. See OCGA § 19-7-1. Finally, if no spouse, children, or parents are alive, the court can appoint an administrator or executor to make the claim. See OCGA § 51-4-5. Relatives such as a sibling, uncle, aunt, or grandparent have no right to prosecute the wrongful death case.

We will discuss this in further detail in another blog. However, generally, a wrongful death claim includes recovery for the value of your loved one’s life had he or she not died prematurely.

Estate/Survival Claim

The administrator of your loved one’s estate is the party entitled to make claims for funeral, medical, and other necessary expenses and any claim for pain and suffering before death. OCGA § 51-4-5.

If you have any questions about who can make a wrongful death claim on behalf of your loved one, please call us. We have provided a very general overview, but many details and complications come up when applying these rules in real life.

Adverse Possession and Property Disputes Clarified

The Georgia Court of Appeals issued a decision that provides some guidance to the often-unintuitive law known as adverse possession. In Houston v. James, A20A1689 (February 3, 2021), three siblings involved in a property dispute sued each other over a 28-acre parcel owned by their deceased father. One sibling lived on and took care of the 28 acres for more than 20 years. But his father left most of the property to the other two siblings. The sibling left out argued he owned the 28 acres by adverse possession. He claimed he had had publicly, continuously, uninterruptedly, and peaceably possessed the property for more than 20 years. His two siblings disagreed, arguing that the possession was without a “claim of right.”

To be adverse, possession must be for more than 20 years and must be public, continuous, exclusive, uninterrupted, peaceable, accompanied by a claim of right, and not originate in fraud. OCGA § 44-5-161(a). Also, and quite importantly, the party adversely possessing must have a “claim of right” to the property.

A claim of right means the possessor claims the property as his own. Under Georgia law, a claim of right, or adverse possession, will be presumed from the assertion of dominion, particularly where the possessor has made valuable improvements. See Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d 409) (2000). Georgia courts have held that there does not need to be direct evidence of the state of mind of the possessor concerning claim of title; however, there must be evidence of some claim of title in the sense that the possessor claims the property as his own. Walker v. Sapelo Island Heritage Authority, 285 Ga. 194, 674 S.E.2d 925 (2009).

In Houston, the Court of Appeals concluded that a jury must decide whether the sibling claiming the property by adverse possession did so with a claim of right. If you have a property dispute concerning adverse possession, please call us at 404-382-9994 to discuss your options.

In Georgia, how long do you have to tender the statutory redemption amount following a tax sale and how much do you have to pay?

OCGA § 48-4-42 says: “The amount required to be paid for redemption of property from any sale for taxes . . . shall . . . be the amount paid for the property at the tax sale . . . plus a premium of 20 percent of the amount for the first year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made and 10 percent for each year or fraction of a year thereafter.”

OCGA § 48-4-40 says the tax deed purchaser may terminate the right to redeem one year after the tax sale by sending out notices to any interested parties. The notice regarding the tax deed must include a deadline to redeem.  

It sounds simple enough, but what if the parties can’t agree on an amount? And what if a party redeems within the deadline by mistakenly pays less than the full redemption amount required under the statute? This situation arose in D&D Family Properties, LLC v. Wright, A20A1339 (November 3, 2020).

In Wright, the tax sale took place on July 5, 2017. The Court of Appeals found that the deadline starts running on the date of the tax sale. Thus, the deadline to redeem fell on July 4 of the following year. The redeeming party submitted $7,600 on July 5 ($6,000 for the amount paid at the tax sale plus the 20% premium). It did this thinking the one-year deadline ran on July 5. Or because July 4 was a holiday, the deadline rolled over to the next business day.

The Court of Appeals disagreed. It ruled that by July 5, the redeeming party owed an additional 10%. Thus, the $7,600 was inadequate, and the redeeming party could not redeem.

The takeaway is the Court of Appeals is willing to strictly enforce the statutes regarding tax sales.