Real Property

• Publication year: 2020

Real Property

Linda S. Finley

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Real Property

by Linda S. Finley^*

I. Introduction

This Article surveys developments in Georgia real property law between June 1, 2018 and May 31, 2019.¹ The Article covers noteworthy cases decided during this period by the Georgia Supreme Court, the Georgia court of Appeals, the united States District courts, and the United States Bankruptcy Court and includes information about legislation enacted during the survey period which affects real property law.²

II. Legislation

The 2019 regular session of the Georgia General Assembly adjourned sine die concluding its forty-day legislative session shortly after midnight on Tuesday, April 2, 2019.³ Although further legalization of marijuana and the enactment of cannabis-related legislation legalizing limited in-state cultivation, production, manufacturing, sale, and

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purchase of low-THC CBD oil⁴ was perhaps the most talked about legislation during the session, real property law was not ignored.

Very basic, but important to every real estate practitioner, is the statutory amendment to add section 9-15-4(f)⁵ to the Official Code of Georgia, which increases recording fees that the clerk of superior court may charge and provides for a flat fee per instrument (in most instances) rather than a per page fee. The cost for recording most real estate instruments shall be twenty-five dollars.⁶ The types of instruments where the flat fee is applicable "includ[e], but [are] not limited to, each deed, deed of trust, affidavit, release, notice, certificate, cancellation, assignment, notice of filing for Uniform Commercial Code related real estate, and assignment of a security deed of mortgage."⁷ Likewise, liens upon real estate and personal property, hospital liens, lis pendens, information on utilities, cancellations, and a writ of fieri facias will also carry a twenty-five dollar flat fee.⁸ The fee changes become effective January 1, 2020.⁹

The Georgia Landlord Tenant Law¹⁰ was amended to add a new provision¹¹ prohibiting retaliation by a landlord against a tenant who reports unsafe or unhealthy conditions of a property.¹² A violation can be established if a tenant demonstrates that he or she alerted the landlord about repair or a property condition affecting the health or safety of the tenants or the habitability of the property,¹³ that the tenant, in good faith,¹⁴ complained to a governmental body who enforces building or housing codes,¹⁵ or that the tenant attempted to establish or participated in a tenant organization formed to address property conditions.¹⁶ The landlord violates the statute if, within three months after the tenant takes action, a retaliatory eviction is filed¹⁷ or if the

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landlord deprives the tenant from using the premises,¹⁸ halts services to the tenant provided under the lease agreement (such as utilities),¹⁹ increases the tenant's rent, terminates the lease agreement,²⁰ or generally interferes with the rights provided the tenant under the terms of the lease.²¹ Retaliation by the landlord is a defense to an eviction action and, if successful in proving that the landlord's action was willful, wanton, or malicious, the tenant may recover a civil penalty against the landlord equal to one month's rent, plus an award of $500 for court costs and reasonable attorney's fees, less delinquent rents, or other sums to which the landlord is entitled.²² The landlord may invoke a rebuttable defense if, within a prior twelve-month period, the property has been inspected by federal, state, or local agencies which certify that the property complies with applicable building and housing codes.²³ Furthermore, the landlord is not liable for retaliation when rent or other sums due are increased pursuant to the terms of the lease,²⁴ on account of a reduction of services for an entire residential building or complex,²⁵ or on account of the provisions regulated by a state or federal housing program.²⁶ Defenses against an alleged retaliatory eviction include proof that the tenant was delinquent in payment of the rent when the landlord gives notice to vacate or files an eviction action;²⁷ that the tenant intentionally damages the property or threatens violence against the landlord, its employees, or another tenant;²⁸ that the tenant breached the lease provisions concerning serious misconduct or criminal acts;²⁹ or if the tenant remains in the property after giving the landlord a notice of termination or intent to vacate the premises.³⁰

In other legislation affecting eviction law, O.C.G.A. § 44-7-9³¹ was amended to create a deadline for parties who have received a writ of possession to obtain execution of the writ. The statute provides that application for execution must be made within thirty days of issuance of

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the writ of possession unless the application is accompanied by an affidavit showing good cause for the delay.³² The failure to timely apply for execution of the writ requires the applicant to reapply for a writ of possession.³³ The amendment creates a definition for "application for execution of a writ of possession" as that "request or application for a sheriff, constable, or marshal to execute a writ of possession which was issued pursuant to this article"³⁴ and restates that the writ of possession is the legal instrument issued by the court to recover possession of property in an eviction proceeding.³⁵

In an effort to protect Georgia beaches, House Bill 445³⁶ revised multiple provisions of state law relating to protection of dunes. O.C.G.A. § 12-5-232³⁷ was revised to redefine certain terms used in managing the shoreline. "Dynamic dune field" is now defined as "those elements of the sand-sharing system including the dynamic area of beach and sand dunes, varying in height and width, but does not include stable sand dunes."³⁸ The revision changes the definition of "ocean boundary of the dynamic dune field" as "extend[ing] to the ordinary high-water mark as determined by the [D]epartment [of Natural Resources]."³⁹ The determination of the landward boundary of the dynamic dune field is made more specific and grandfathers in structures existing on July 1, 1979.⁴⁰

Giving further guidelines for construction over or near dunes is the definition of "minor activity" such as "installation of decks, patios, or porches or the alteration of native landscaping" which do not impact more than one-third of the parcel, or "construction or installation of elevated crosswalks providing access across sand dunes and shoreline stabilization activities."⁴¹

In order to determine where construction can take place on the beach, the definition of "[o]rdinary high-water mark" was amended to mean "the upper reach of the tide along the shore established by the fluctuations of water and indicated by physical characteristics such as a clear natural line impressed on the shore, shelving, changes in the

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character of soil, or the presence of litter and debris."⁴² "Sand dunes" is now defined as the "mounds of sand within the sand-sharing system deposited along a coastline by wind, tidal, or wave action, or by beach nourishment or dune construction" and includes the areas covered by native vegetation.⁴³

The amendment also created the Shore Protection Committee within the Department of Natural Resources.⁴⁴ This committee is composed of five members including the commissioner of natural resources and four other people. Three of the four appointed members must be residents of Camden, Glynn, McIntosh, Liberty, Bryan, or Chatham county.⁴⁵ The committee is authorized to issue orders and to grant, suspend, modify, or deny permits for construction that affect the dunes.⁴⁶ The remainder of the legislation amends O.C.G.A. § 12-5-238⁴⁷ and empowers and instructs the committee regarding how it will make determinations.

III. Title to Real Property⁴⁸

Republic Title Company, LLC v. Andrews⁴⁹ highlights important procedural distinctions between the two types of quiet title remedies found in Georgia: conventional quiet title set out at O.C.G.A. § 23-3-40,⁵⁰ and quiet title against "all the world" set out at O.C.G.A. § 23-3-60.⁵¹ Conventional quiet title sounds in equity, and therefore venue is controlled by Article VI, § II, paragraph III of the Georgia Constitution: venue is proper in the county where at least one defendant resides.⁵² Quieting title against "all the world" is a proceeding taken directly against the property to establish title to land,

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making the case in rem.⁵³ As such, venue is proper where the property is situated.⁵⁴

In Republic Title, Andrews brought an equitable quiet-title petition, but filed suit in the county where the property was located and not where any of the respondent—defendants resided.⁵⁵ Republic Title filed a motion to dismiss the matter for improper venue, which was denied by the trial court. Thereafter, summary judgment was granted to Andrews. Republic Title appealed.⁵⁶

In its sole enumeration of error, Republic Title claimed that the trial court erred in denying its motion to dismiss because proper venue was not in the county where the property was located but was proper only in a county where a defendant could be served. The court of appeals reversed the trial court, pointing out that the two statutes governing quiet title were "entirely distinct from each other."⁵⁷ Since Andrews characterized her petition as a "conventional quia timet," did not frame the action as against the property itself, and since she named two individuals and specific deeds she sought removed as clouds on her title, the court held the action was properly prosecuted as a conventional quiet title, requiring it to be brought in the county where at least one of the respondents resided.⁵⁸ Accordingly, summary judgment was improper.⁵⁹

The case Republic Title Company, LLC v. Freeport Title and Guaranty, Inc.,⁶⁰ involved a dispute over excess funds generated from a 2017 tax sale of real property in Fulton County...