Tag: restrictive covenant

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.