Unwritten Easements
In Georgia, an easement does not need to be in writing. Easements can be created by adverse use and by implication.
Express Grant
This blog focuses on easements created by implication. When a landowner subdivides property, and the deeds to the subdivided lots describe streets, parks, and lakes, the buyers obtain an easement to use the streets, parks, and lakes.
These are called “easements by express grant” and are commonly created when a subdivision is developed. The developer will submit a subdivision plat that includes streets and parks. When the developer sells the lots in the subdivision, the deeds reference the subdivision plat. Reference to the subdivision plat that shows streets and parks create enforceable easements that allow the purchaser to use the streets and parks.
What about a golf course?
This issue was presented to the Georgia Supreme Court in WS CE Resort Owner, LLC v. Holland et al., S22G0030 (February 21, 2023). In that case, the subdivision plat referenced a golf course. The purchasers claimed that because the subdivision referenced the golf course, they automatically obtained an easement to use the golf course. The dispute arose when the owner tried converting the golf course into condominiums.
The adjoining owners objected based on their claim that they had an easement to use the golf course and, therefore, the owner could not develop it. The adjoining homeowners argued that they had relied on a marketing brochure for the neighborhood that pictured a golf course and described the intended development of smaller homes “overlooking the Par 3 golf course.”
The trial court agreed with the adjoining homeowners and stopped the development of the golf course. The golf course owner appealed. The Georgia Court of Appeals agreed with the trial court. However, the golf course owner then appealed to the Georgia Supreme Court. The Georgia Supreme Court disagreed with the trial court and the Georgia Court of Appeals. It ruled that reference to a golf course in a subdivision plat does not give subsequent purchasers an easement to use the golf course. Thus, the golf course owner was allowed to convert the golf course into condominiums.
Streets, Parks, and Lakes Referenced in a Subdivision Plat Do Create an Easement
The Supreme Court determined that merely identifying a golf course on a subdivision is insufficient to create an easement. Showing a golf course on a subdivision plat did not show a “clear intent” to set apart the designated area for the lot owners’ use or enjoyment. On the other hand, the Court clarified that streets, parks, and lakes identified on a subdivision plat create an easement for homeowners in a subdivision.