Tag: easement

Subdivision Plats in Georgia

subdivision plat

This blog concerns subdivision plats. During the development of a subdivision, the developer submits a subdivision plat to the county for approval. Once approved, the developer records the subdivision plat on the county’s real estate records.

Alleys, Parks and Water Courses, Drains, Easements and Public Places

The subdivision plat includes not only the dimensions of the developed lots but also includes alleys, parks and water courses, drains, easements, and public places. As the developer sells the lots in the subdivision, the deeds transferring the lots to the new owners mention the subdivision plat. When the deeds reference the plat, the new owner gets an automatic easement to use the alleys, parks and water courses, drains, easements and public places marked on the subdivision plat.

Transfer of Public Space from Developer to the HOA

Once the developer finishes the subdivision, the developer usually transfers the alleys, parks and water courses, drains, easements and public places to the neighborhood’s homeowner’s association.

Dedication to Public by the Developer

Recording a subdivision plat showing areas set apart for public use creates not only a grant of an easement to the purchasers of the property, but also raises a presumption of intent to dedicate to the public. However, to complete a dedication of land to public use, the developer must not only offer to dedicate, but the county must accept the offer.

What Happens When a Public Space Isn’t Used

Sometimes, after the developer transfers the public area shown on the subdivision plat to the HOA, but the area is never used. And often, the HOA fails to pay taxes. When this happens, the county will have a tax sale and sell the property.

As mentioned above, each lot owner obtained a right to use the public area when they purchased their lot. The right to use the public area is considered an express grant and is an unalterable property right. The rationale is that the price of the lots included the use of the public areas. This principle is true even if the lot owners have never used the public space.

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If you have questions about a subdivision plat or property rights, call us at 404-382-9994 to speak with an attorney.

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.

Easements by Adverse Possession or Prescription

Georgia law allows a party to obtain a private way (or easement) over the land of another through a process known as prescription (also sometimes called adverse possession). See OCGA Section 49-4-40 et seq. This requires seven years’ uninterrupted use through improved lands. To show prescription, however, the party seeking an easement must show (1) uninterrupted use of the alleged private way, (2) that the private way is no more than twenty feet wide, (3) that he or she has kept the private way in repair, (4) and that the use was public, continuous, exclusive, peaceable, and accompanied by a claim of right. Finally, the use of the alleged easement must be adverse. This means that if the owner of the property gave permission to use the property, there cannot be adverse possession.

To obtain an easement over another’s land, the party seeking an easement must prove each of the above elements. All things being equal, the courts will favor the property owner over the party claiming an easement. This makes sense. Obtaining a legal right to go over someone else’s property should not be easy. On the other hand, a property owner should have some responsibility to know how his or her property is being used and to prevent unauthorized use.

A recent Georgia Court of Appeals case decided this issue. In Wilkes 581 Farms, LLC v. McAvoy, A20A1225 (September 18, 2020), a party claimed an easement over a road belonging owned by another party. The court ruled against an easement over the road because the property owner had given permission to use the road. Thus, the claim was not adverse. In other words, if a property owner gives permission, there cannot be adverse possession or prescription.

Secondarily, the court ruled that the party seeking an easement lost because he could not show his the use of the road was exclusive. Instead, the evidence showed that others used the road.

If you have an easement question or dispute, please call us at 404-382-9994.

Georgia Easement Disputes

For those interested in easements disputes, a new case from the Georgia Court of Appeals is worth reviewing. Patel Taherbhai, Inc. v. Broad Street Stockbridge, LLC, A19A0820 (October 3, 2019). This case involves adjoining landowners, Patel and Broad Street, who got into a dispute regarding an easement. The easement was on Patel’s property and allowed Broad Street to go over Patel’s property to reach a public street.

Broad Street complained that Patel was blocking access to the easement. After back and forth between the parties’ attorneys, Broad Street filed an ejectment lawsuit against Patel. The lawsuit alleged Patel had constructed improper and unsafe encroachments on the easement. These were denying Broad Street access and diminishing the value of its property. Therefore the encroachments should be removed. Patel denied the alleged encroachments were blocking access. And, even if access was being blocked, Broad Street had consented to the encroachments by failing to timely object.

The trial judge agreed with Broad Street and ordered the encroachments ejected (i.e., removed) from the easement. Broad Street appealed. The appellate court’s analysis focused on whether a party is entitled to file an ejectment lawsuit to remove an encroachment from an easement. In a well-reasoned decision, the appellate court determined that ejectment cannot be used in these situations. Instead, ejectment only applies when a party’s rightful possession to its property is being denied. Here, Patel’s alleged misconduct wasn’t occurring on Broad Street’s property (instead, it was occurring on Patel’s property) and therefore Patel wasn’t interfering with Broad’s Street’s possession of its property. This does not mean Patel is off the hook, only that the correct remedy is these cases is to file an action for damages and/or an injunction.

While many appellate decisions unfortunately provide little guidance, this thoughtful decision arrives at a ruling by carefully examining prior case law (going back to the 1800’s) and opinions expressed by real estate experts. In the end, lawyers (and landowners) now have a definitive understanding of how to handle situations in which an adjoining neighbor blocks an easement.

If you’re in a real estate dispute, please contact us for a free evaluation. Our number is (404) 382-9991.