Declaratory Judgments in Georgia

New Georgia Supreme Court

What is a declaratory judgment? When is it helpful? When can it be used? These questions were answered by the Georgia Supreme Court in Cobb County v. Floam, __ Ga. __ (S24A0599, decided May 9, 2024).

Simply put, declaratory judgments are designed to provide legal guidance to a party uncertain about their future legal rights. For example, in a contract dispute, if parties disagree regarding the future performance of a contract term, either party may seek a declaratory judgment. A declaratory judgment is appropriate in this situation because a clear understanding of the parties’ future rights is necessary to help or protect the parties determine their future conduct.

Existing Georgia Statutory Law

By statute, the Georgia legislature instructs that Georgia courts are entitled “to declare rights and other legal relations of any interested party petitioning for such declaration” “[i]n cases of actual controversy” and “in any civil case in which . . . the ends of justice [so] require[.]” OCGA § 9-4-2(a), (b). The Georgia legislature further instructs a declaratory judgment “is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations[.]” OCGA § 9-4-1.

Yes, the above language is vague . . . even for attorneys. “Actual controversy” and “ends of justice” are not exactly objective measures. Since the above law was passed in 1946, Georgia courts have issued many decisions interpreting these laws, culminating in the most recent Georgia Supreme Court decision mentioned above.

Like a United States Supreme Court decision, when the Georgia Supreme Court tackles an issue, it creates a strong precedent that usually applies for many years. Thus, Floam is a significant case. Floam confirms that a declaratory judgment is appropriate only when it will “direct the plaintiff’s future conduct” but is not appropriate to decide already accrued rights. Floam explains that a declaratory judgment is not to resolve “academic debates or deciding purely theoretical questions” but only to offer “relief from the threat of wrongful acts and injuries yet to come.”

At issue in Floam was the Floams’ allegation that a recent redistricting in Cobb County was unconstitutional. In particular, the Floams claimed that they had voted for a specific commissioner before the redistricting but are now represented by a different commissioner.

The Takeaway

Applying the above analysis, the Supreme Court determined that the Floams claim had “no relation to any uncertainty as to their future conduct. The Floams frame their right as the right to be represented by the person for whom they voted. But any violation of such a right occurred once the BOC Amendment took effect, and the Floams have not alleged how that past violation creates uncertainty as to their future conduct.” Thus, while redistricting may or may not have been unconstitutional, the Floams could not obtain a declaratory judgment because they did not allege a possible future injury.

Floam concludes by warning that despite its ruling, the proposed redistricting in Cobb County will no doubt impact Cobb residents in the future. It explains that its decision is limited only to the facts presented by the Floams. Reading between the lines, the outcome likely would have been different had the Floams made a better argument, i.e., not being able to vote for the same commissioner was not persuassive.

Call Us!

While Floam involves government law, it provides valuable instruction for reaal estate and business disputes, where declaratory judgments can be critical. Please call us at 404-382-9994 with any litigation-related questions.

Quiet Title, Adverse Possession, and Color of Title

The title of this blog encompasses three differing but often overlapping areas of Georgia law. The Georgia Court of Appeals decided a case involving all three: quiet title, adverse possession, and color of title. See Brownphil, LLC v. Cudjoe, __ Ga. App. __ (March 14, 2024, A23A1762).

To understand the case, we have to quickly review the title history. The property was obtained by Earnest and Louise McClendon in 1958. They conveyed their interest to Grier Construction Company (owned by Freddie Grier). In 1997, Freddie Grier—not Grier Construction—conveyed the property to Cudjoe. Brownphil got involved when he got a quitclaim deed from Earnest and Louis McClendon’s heirs.

Brownphil filed a quiet title action to clear the title of the property, claiming that Cudjoe did not have an interest in the property because Grier Construction was not incorporated at the time it received the property from Earnest and Louise McClendon and because Freddie Grier—the party that granted the property to Cudjoe—was never on the title. Cudjoe argued that he obtained full title by adverse possession.

Interestingly, the special master appointed to the case sided with Brownphil. But, after a hearing, the trial court ruled in favor of Cudjoe.

An appeal followed in which Brownphil argued that Cudjoe had not done enough to establish adverse possession. After receiving a deed from Freddie Grier, Cudjoe paid the property taxes and mowed the lawn. Brownphil argued that paying taxes and lawn mowing are insufficient to gain title by adverse possession.

After reviewing the facts and prior cases, the Georgia Court of Appeals ruled in favor of Cudjoe. The Court of Appeals cited the legal doctrine of “color of title” as the main reason for favoring Cudjoe. Color of title means that someone has a writing (usually a deed) that appears to grant them title. When someone has color of title, importantly, they only have to show seven years of adverse possession and the element of “notoriety” usually required for adverse possession is waived. Notoriety means placing the world on notice that you adversely possess the property. Only having to show seven years and not having to establish notoriety makes it much easier to display adverse possession.

Based on this easier standard, the Court of Appeals found that Cudjoe had shown enough to obtain title to the property through adverse possession.

If you have any questions regarding a quiet title, adverse possession, or color of title, please call us at 404-382-9994.   

A No-Brainer (and Free!!) Way to Prevent Real Estate Fraud in Georgia

Real Estate Fraud in Georgia

Real estate fraud in Georgia is alive and well. Folks filing fake real estate deeds in Georgia are common. And if you have ever encountered a sovereign citizen, you may have seen some interesting paperwork recorded on Georgia’s public record. Once an improper deed is recorded against your property, it is not always easy to remove and may require filing a quiet title action.

One easy way to combat real estate fraud in Georgia is to register your name with the Georgia Superior Court Clerks Cooperative Authority (“GSCCCA”). These days, most Georgia real estate deeds and documents are recorded using GSCCCA’s online portal. So, to combat fraud, the GSCCCA created a webpage titled the Filing Activity Notification System.

Filing Activity Notification System (a/k/a “FANS”)

To prevent real estate fraud, FANS is a system that allows individuals in Georgia to sign up and receive notifications whenever real estate and personal property records are filed, indexed, and transmitted by Clerks of Superior Court. You can get notifications for all Georgia counties or you can select just one county. So, for example, if someone files a fraudulent quitclaim deed in Bartow County using your name, you will get notified by email or text.

You can opt-in to this system by creating a notification request, which will send an email or text whenever a document in select official county records is filed and index data is entered and transmitted to the GSCCA by the Clerk. The system matches the notification criteria you set up when you register. Notifications are generated for a document filed and index data only for your established parameters.


Notifications generated by the system depend upon the index data entered and transmitted by the Clerk of Superior Court in the county of filing. Therefore, it’s not guaranteed that the notices generated by this system will be comprehensive, but it costs nothing and is, therefore, a no-brainer to sign up. With being notified, you may completely unware of the real estate fraud.

Obviously, this system may not work well for you if your name is John Smith. But if your name is less common, like this blog’s author, this system is a great way to protect your real estate proactively. Even if your name is more common, you can limit the counties to only those where you own real estate.

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”

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.