Real Property

• Publication year: 2021

Real Property

Erica L. Burchell

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Real Property

Erica L. Burchell^*

I. Introduction

This Article surveys developments in Georgia real property law between June 1, 2020 and May 31, 2021.¹ Real property law is unique in that it touches nearly every other facet of the law in some way. For instance, family law often intersects with real property law in cases of divorce. Contract law is often at the root of any real property sales or agreements—and also comes into play with issues of landlord-tenant disputes and evictions. Since real property can be, and often is, the largest asset people leave behind when they pass away, real property law certainly impacts estate law. Environmental law includes questions of land use and resource management. Real property law is highly impactful and interesting, even for those who do not practice in the area.

II. Adverse Possession

Adverse possession occurs when a party can show possession that is exclusive, not originating in fraud, "public, continuous, exclusive, uninterrupted, [ ] peaceable" and "accompanied by a claim of right."² The party claiming prescriptive title—that is, the would be adverse possessor—bears the burden of proving, by the preponderance of the evidence, that the elements outlined in O.C.G.A. § 44-5-161(a) have been

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met for a twenty-year period.³

In Houston v. James,⁴ a fight over twenty-eight acres of land ensued between family members following the death of the original land owner, who was the father of the three dueling siblings. In this case, two sisters, Sue James Houston and Teresa James Potts, brought an appeal of the Rabun Superior Court's order that fifteen acres willed to them by their father had been acquired through prescriptive title by their brother, Tom E. James, Jr.⁵ The sisters argued that the grant of summary judgment in favor of James was inappropriate because there were material issues of fact to be decided regarding James's claim of right, whether his possession was permissive, and whether his possession of the land had been exclusive.⁶ On a de novo review of the trial courts grant of summary judgment, the Georgia Court of Appeals held that a question of material fact existed as to the time period of James's possession under claim of right.⁷

The story goes something like this: back in the 1970s, James's father, the landowner, gave James permission to build a house and move a trailer onto the property. James contended that his father told him that he did own, or promised him that he would one day own, all twenty-eight acres the father had. James's sisters begged to differ. Houston and Potts, the sisters, argued that their father had repeatedly told them he would leave an acre to each of his children, grandchildren, and great-grandchildren upon his passing, and that James would receive ten acres. The parties produced no evidence as to their father's wishes. James asserted in his complaint that back in 1979 his father changed his wishes about James living on the property and ordered James to vacate the property.⁸ According to the complaint, James refused to leave, claimed the property as his own, and occupied the property exclusively for thirty years, exercising "exclusive possession, dominion, and control of the property to the exclusion of all others."⁹

Despite the pronouncements made by James in his complaint, in documents submitted in support of a new trial, James stated that his father held title to the land up until his 2017 death and referred to his

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father as the "predecessor in title" to his sisters.¹⁰ James even admitted that back in 1982, his father deeded him 0.96 acres of the property. Part of the deeded property included the land where James's house sits. No other property was deeded to James at that time. James paid taxes on the 0.96 acres, while his father paid the taxes on the remaining land. In depositions, both sisters testified that James asked his father for ten acres of land back in 2014, angering their father. Furthermore, the sisters contended that their father helped to build a barn located on the property and also helped to furnish cattle and seed.¹¹

In 2017, the father died.¹² A 2016 will made by the father left roughly fifteen acres to the two sisters and roughly twelve acres in a life estate to James. Remember, 0.96 of an acre had already been deeded to James by his father inter vivos. After the death of his father, James filed an action for declaratory judgment. In the action, James sought to obtain title by adverse possession to the fifteen acres willed to his sisters by their father. Moreover, James wanted an injunction to prevent his sisters from occupying or selling the land. James's sisters counterclaimed, and requested an injunction to prevent their brother from trespassing on their land. Houston and Potts also requested attorney's fees for frivolous litigation. Subsequently, James moved for summary judgment, which the trial court granted.¹³

In their appeal, Houston and Potts contended that material issues of fact existed.¹⁴ Namely, the sisters argued that there was a question as to (1) James's claim of right to the land, (2) whether he possessed the land by permission, and (3) whether his possession was exclusive. Without addressing the issues of permission and exclusivity, the court of appeals agreed with the sisters that a question of material fact did exist with regard to James's claim of right to the property. Accordingly, the court of appeals reversed the grant of summary judgment.¹⁵

The court of appeals explained that a "claim of right" is equivalent to a "claim of title" and a "claim of ownership."¹⁶ A claim of right need not be together with a claim of title from a predecessor, but a claim of right does require a claim of title "in the sense that the possessor claims this

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property as his own."¹⁷ The assertion of dominion over a property gives rise to a presumption of claim of right—particularly when valuable improvements provide the basis for assertion of dominion.¹⁸ The court of appeals cautioned, however, that the exercise of dominion alone does not dispense with the possessor's need to show claim of right when conflicting evidence as to claim of right is presented.¹⁹

The court went on to note that though adverse possession can arise through innocent or mistaken possession, knowledge that a piece of property belongs to someone else is fatal to any claim of adverse possession.²⁰ The death of the adverse possession claim occurs because of the requirement of good faith.²¹ In James's case, evidence existed that James may have exercised dominion over the full twenty-eight acres of land. James's sisters even acknowledged that since the 1970's, James has farmed the land, erected buildings on the land, parked his vehicles on the land, and sold hay from the property. These factors are indicators of possession.²² Moreover, there is evidence that the sisters and father believed James had taken the land, against his father's will, as far back as the 1980's.²³ But, the court of appeals noted that there is also evidence that James occupied the land with the knowledge that his father kept title to the full twenty-eight acres. James admitted his father had a change of heart regarding the land in 1979. Moreover, James admitted to the deeding of 0.96 acres by his father in 1982. James's father only deeded the 0.96 acres to James at the time, and nothing more. Sometime after that deed was delivered, James went to his father and requested a grant of an additional ten acres, which James's father refused.²⁴

The court of appeals also cited James's reference to his father as his sister's predecessor in title and James's statement that his father retained title to the property until his father's death in 2017.²⁵ These facts, the court of appeals held, created a question of fact as to whether James knew the property did not belong to him.²⁶ These facts are critical, because where a claimant admits that another holds title, such an

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admission is fatal to a claim of right.²⁷ The court of appeals, reviewing whether a grant of summary judgment was appropriate, and thus reviewing the case de novo and drawing inferences favorable to James's sisters, held that an issue of material fact existed. The court of appeals noted that evidence in the record could support a reasonable inference that James was nothing more than a trespasser—and that is for a jury to decide.²⁸ The court of appeals thus reversed the trial court's grant of summary judgment.²⁹

III. Easements, Covenants, and Boundaries

Easements, generally speaking, grant certain rights to the holder of the easement—allowing the holder to use someone else's land for a specific purpose. Alternatively, declarations of covenants often restrict a property owner from doing certain activities on their own land. simply stated, easements often grant rights to non-property owners as they concern another person's piece of property. By contrast, declarations of covenants take away or limit the rights of property owners as they concern their own pieces of property. Boundary disputes spring up when there is a question as to the legal borders of a certain piece, or pieces, of property.

The recently decided case of Doxey v. Crissey³⁰ begged the question of whether pedestrians could be required to hold their horses—that is, not to walk upon a bridle trail easement located on a lot owned by Carolyn Doxey in the Oakton subdivision. Doxey's property backs up to the Kennesaw Mountain National Park³¹ —which includes hiking and walking trails³² —and the bridle trail easement connects the street fronting Doxey's property with the park.³³ Residents of the subdivision where Doxey lived used the bridle trail easement area to access the park on foot. Eventually, in the early 2000s, Doxey erected a fence across the back of her lot, adding a gate that allowed access to the park. However, by 2004, the gate was "nailed shut and then removed,"...