Real Property

• Publication year: 2020

Real Property

Linda S. Finley

[Page 255]

Real Property

by Linda S. Finley^*

I. Introduction

This Article surveys developments in Georgia real property law between June 1, 2019, and May 31, 2020.¹ Of course, the Survey became significantly different from previous years as a result of the coVID-19 pandemic. The Supreme court of Georgia issued emergency rules and procedures resulting in the shutdown of many courts and most assuredly the slowdown of every court. Nevertheless, the Survey is the result of a review of appellate court decisions rendered during the survey period as well as legislation and other mandates promulgated during the period which affects real property law and practice.

II. Legislation

The Georgia General Assembly convened its first session on January 13, 2020. Little did anyone know that on March 14, 2020, the Legislature would be forced to suspend its sessions and otherwise limit legislative activity for twelve weeks due to the coVID-19 pandemic. The Legislature did not reconvene until June 16, 2020, and completed its session on June 26, 2020.²

on March 14, 2020, Georgia Governor Brian Kemp issued an Executive Order declaring a Public Health State of Emergency in Georgia.³ The pandemic created the necessity for virtual meetings, working remotely, and even virtual real estate closings. Prior to the

[Page 256]

shuttering of most businesses, including law firms, Georgia law required "in person"⁴ notarization.⁵ Although House Bill 785⁶ established a protocol for remote online notarization, the bill did not pass out of legislative committee. COVID-19 changed that. On March 31, 2020, Governor Kemp issued an Executive Order pertaining to execution of documents, suspending the requirement under Georgia law that formal witnessing of documents used in real estate transactions (including that of a notary) must be executed in person.⁷ The Executive Order temporarily allows attestation of recordable instruments, that under statute must be executed in the physical presence of a notary to allow the executor to be in one location, and a witness, and the notary in another location through the use of real-time audio video communication that "allows [all] parties to communicate simultaneously with each other by sight and sound."⁸ Later, as it became apparent that the pandemic was going to last longer than expected, the Governor extended the Public Health State of Emergency⁹ and issued an Executive Order "Allowing Remote Notarization and Attestation," which expanded the prior order allowing attestation outside the presence of a notary and/or witness to other legal documents and sets out five requirements for proper virtual notarization.¹⁰ Specifically, this Executive Order requires: (1) That the audio-video communication technology allows simultaneous (real-time) communication among the individual signing the document (the signer), the witness(es) and/or the notary public by sight and sound; (2) that the notary is either a Georgia licensed attorney or operating under the supervision of a Georgia attorney; (3) that the signer presents evidence of identity during the live session; (4) that the notary is physically located in the state of Georgia; and (5) that the signer transmits a copy of the signed document to the notary on the same date it was executed, and that the notary, and witness execute the document on the same day that the signer executes the document.¹¹

[Page 257]

III. Condemnation and Eminent Domain¹²

In Torres v. City of Jonesboro,¹³ the Georgia Court of Appeals considered whether the trial court erred in holding that the appellants (Torres) failed to prove the amount of attorney's fees they incurred in defending a condemnation action they alleged was abandoned by the City of Jonesboro (City).¹⁴ Through two condemnation actions, the City took Torres's property. Torres fought the fact of the taking and the City voluntarily dismissed the cases.¹⁵ Consequently, citing O.C.G.A. § 22-1-12(2),¹⁶ Torres moved for attorney's fees and costs.¹⁷ Torres's counsel attached affidavits and billing records; court reporter bills; and bills and affidavits of an appraiser to the motion for fees and costs. Torres's fee expert testified that the attorney's fees, appraisal fees, and costs, which totaled $51,206.15, were reasonable. During the City's cross-examination, Torres's expert testified the basis for his testimony consisted of a review of the billing statements and affidavits. When testimony concluded, the City moved to strike the expert's testimony claiming it was hearsay. The trial court agreed and denied Torres's attorney's fees motion by finding that without the expert's testimony, Torres failed to present evidence as to the amount of fees.¹⁸

on appeal, the court of appeals held that the City's motion to strike the expert testimony was not a proper objection to the hearsay because it was only raised after Torres had rested.¹⁹ The court held that " [a] non-contemporaneous motion to strike is not 'a procedural tool to object to evidence, except in those limited instances where the evidence was inadmissible because it was obtained in violation of a criminal defendant's constitutional rights.'"²⁰ The court vacated the judgment and remanded the case back to the trial court.²¹

[Page 258]

In Department of Transportation v. Szenczi,²² the Georgia Court of Appeals held that an O.C.G.A. § 9-11-60(b)²³ motion attacking service of process must be filed in conjunction with a notice of appeal.²⁴ Appellee and Condemnee Szenczi challenged service under O.C.G.A. § 32-3-8(b)²⁵ and argued The Department of Transportation (DOT) should effectuate service of process on the probate court or guardian because Szenczi claimed a disability.²⁶

On December 9, 2013, DOT filed a petition for condemnation of real property for 0.674 acres of property, including that of Szenczi, and paid $30,150 as its estimate of just and adequate compensation into the registry of the trial court. Per the sheriff's return of service, a deputy sheriff personally served Szenczi with the petition on December 16, 2013. Four months later, the trial court entered a judgment finding no condemnee appealed DOT's estimate of compensation within the required thirty-day period.²⁷

On April 23, 2014, an attorney representing Szenczi filed a notice of appeal contesting the amount of compensation paid by DOT. On May 22, 2014, Szenczi's son, claiming to be his father's "attorney-in-fact" and represented by his father's attorney, also filed a notice of appeal.²⁸ Months later, on September 5, 2014, Szenczi filed a motion to set aside the final order under O.C.G.A. § 9-11-60(d),²⁹ arguing that DOT's negotiations with Szenczi's son made them aware Szenczi was disabled and being represented by his son.³⁰ Because of that knowledge, Szenczi argued that DOT should have served Szenczi and his son.³¹ In its defense, DOT offered an affidavit from the deputy who served Szenczi, stating that Szenczi, "identified himself . . . and was able to communicate in an appropriately responsive manner. [Other than] being in a wheelchair, Mr. [Szenczi] did not appear to me to be laboring under any disability."³²

After two hearings on the matter, the trial court cited the deputy's observation of Szenczi in a wheelchair and found "Szenczi was laboring under 'any disability whatsoever' [per] O.C.G.A. § 32-3-8(b) and, thus, the

[Page 259]

DOT was required to have served the probate court of the county in addition to serving Szenczi personally."³³

On appeal, the court opined that a defense of insufficiency of process or insufficiency of service of process is waived if it is not made by motion or included in a responsive pleading, and Szenczi's notice of appeal failed to plead defective service or mention service at all.³⁴ The court further explained that because Szenczi failed to plead improper service in the notice of appeal and he did not file his O.C.G.A. § 9-11-60(b) motion with his untimely notice of appeal (instead, he filed the motion three months later), Szenczi waived the issue of improper service.³⁵ The court reversed the judgment setting aside the final order.³⁶

In Troup County v. Mako Development,³⁷ the Georgia Court of Appeals addressed three key issues: (1) Did the trial court erroneously instruct the jury on consequential damages? (2) Did the trial court improperly allow the jury to hear evidence of a "runway protection zone?" (3) Did the trial court properly refuse to award attorney fees sought by Mako?³⁸

Before Troup County (County) sought to expand its airport, Mako owned a 4.41-acre tract near the end of a runway. In August of 2015, the County sought to extend that runway towards Mako's property. To facilitate the runway extension, the County took an avigation easement over the entire 4.41 acre property so airplanes could fly low over Mako's property to land on the extended runway. Claiming the area protected by the avigation easement was from 725 to 740 feet, the County sought to pay $4,500. However, after the taking, the County entered Mako's property to remove twenty-two trees the County claimed encroached on the airspace protected by the avigation easement.³⁹

Mako timely filed a notice of appeal of the declaration and petition of taking, invoking its right to a jury trial to determine the amount of just and adequate compensation. At trial, both parties hired expert appraisers to testify on the appropriate amount of compensation for the condemned property. The County's appraiser valued the property at $149,738 before the condemnation and $145,246 after the condemnation, attributing the $4,492 reduction in value to the direct taking of the avigation easement. The County's appraiser testified there were no consequential damages to the remainder of the property. Mako's

[Page 260]

appraiser testified the property was worth $1,102,500 before the condemnation and $705,600 afterward, for a total reduction in value of $396,900. Mako's appraiser attributed $220,500 of that loss to...