Real Property - T. Daniel Brannan and William J. Sheppard

• Publication year: 2000

Real Propertyby T. Daniel Brannan^* and

William J. Sheppard^**

I. Introduction

This Article surveys case law and legislative developments in the area of real property law in Georgia during the period from June 1, 1999, to May 31, 2000. As in past surveys, the authors do not attempt to chronicle each case and statute that affects real property law. Rather, the authors selected the decisions and statutes discussed in this Article for their significance and interest to participants in the everyday practice of real estate law in this state. Several cases discussed below revisited issues from recent surveys and enlarged upon or clarified the holdings from those prior cases.

II. Title to Land

In Burt v. Skrzyniarz,¹ the Georgia Supreme Court defined the evidentiary burden required for a party to rebut the presumption of equal shares in a cotenancy.² According to the court, that presumption may only be rebutted through proof of "clear and convincing evidence" showing that the parties share their tenancy other than in equal proportions.³

The two cotenants in the case, Paul Burt and Nancy Skrzyniarz, began dating in 1990. In 1997 the couple purchased a home in Dutch Island, Georgia. The sales contract for the house obligated both Burt and Skrzyniarz as purchasers of the property, and it was undisputed that they took possession of the house as tenants in common. The deed from the seller to Burt and Skrzyniarz identified both parties as the grantees of the property.⁴

When they separated, a dispute arose between Burt and Skrzyniarz concerning their interests in the property. Burt contended that he owned a ninety-nine percent interest in the property and that Skrzyniarz owned only one percent. Burt filed a complaint for statutory partitioning in which he sought a determination of his interest in the property. During the trial of Burt's claim, third parties involved in the purchase and sale of the property introduced evidence that Burt and Skrzyniarz were to hold title to the property jointly. Following the trial the jury rejected Burt's argument and found the couple had equal shares in the property. Burt appealed from the judgment entered on that verdict.⁵

Burt's argument on appeal focused on the instructions the trial court gave to the jury. In its jury charge, the trial court had instructed the jury that '"[ujnless . . . the document or instrument provides otherwise, a tenancy in common is created whenever [sic] . . . two or more persons are entitled to the simultaneous possession of any property. Tenants in common may have unequal shares, but they will be held to be equal unless the contrary appears.'"⁶ Additionally, the trial court instructed the jury that "[p]arol or oral evidence of the nature of the transaction or the circumstances or the conduct of the parties is admissible to rebut the presumption of equal shares [between tenants in common], but in order to rebut the presumption, the proof must be clear and convincing."⁷ It was this second instruction that Burt objected to on appeal.⁸

The court rejected Burt's argument and affirmed the trial court.⁹ In its opinion the court noted the "axiom that, under normal circumstances, tenants in common hold equal shares in jointly held property is a fundamental precept the of law, and should not be easily subjected to uncertainty or undoing."¹⁰ Using that concept as a springboard, the court noted similar contexts in which a "clear and convincing" evidentiary standard is applied.¹¹ For example, clear and convincing evidence must be presented when one seeks to have a deed set aside or reformed or when one seeks to show that a purchaser of property who makes a conveyance to his or her spouse, parent or child did not intend to make a gift.¹²

The critical issue for the court in Burt in imposing such a high evidentiary burden in this case was the reliance placed on the "well-established presumptions attending a property owner's actions."¹³ The court's decision shows the need for certainty in real estate transactions and gives tremendous deference to the parties' actions in determining what the effect of a given transaction may be.

In Jones v. Bowen,¹⁴ the Georgia Court of Appeals revisited an issue discussed in the 1997 survey, namely that a deed incorporating a recorded plat by reference as to the legal description has the same effect as if the information on the recorded plat were actually reflected in the deed.¹⁵ The boundary dispute in Jones arose from John Robert Jones' January 1999 purchase of two parcels of land from Dorothy R. Zeitower, Lillian R. Stephenson, and Christopher C. Ryals (collectively the "Sellers"). Prior to the purchase, Jones employed George William Donaldson to survey the property. The plat prepared by Donaldson, dated December 31, 1998, was recorded in the Candler County Courthouse.¹⁶ The deed described the property as follows:

All those two certain parcels of land situate lying in a body together in the 1685th G.M. District of Candler County, Georgia and in the aggregate containing 945.064 acres, more or less, all as shown on a plat

of survey prepared for John Robert Jones by George William Donaldson, Registered Surveyor, dated December 31, 1998, and of record in Plat Book 8, Page 85, Candler County, Georgia records, to which plat and the record thereof reference is hereby made and incorporated herein ....

The Grantors intend to convey all of their interest in the tract of land conveyed to Grantors by Executor's and Trustee's Deed, dated February 27, 1997, and recorded in Deed Book 149, Pages 4-5, Candler County, Georgia records, which has been resurveyed by aforesaid plat. Said tract of land is described in said deed as containing 996 acres of land, more or less.¹⁷

The 1998 Plat followed the markers used in a survey plat created in 1981. However, a 1972 plat was also recorded in Candler County depicting the same property. That plat showed an additional 16.3-acre tract (the "Disputed Tract") as part of the property. Jones claims that he discovered the 1972 Plat shortly after he purchased the property. The 1998 Plat showed the Disputed Tract as part of property owned by adjoining property owners (the "Neighbors"). However, it was uncontested that the Disputed Tract had once been a part of the property owned by Sellers.¹⁸

Based on the discrepancy between the 1972 Plat and the 1998 Plat, plus the language of the deed showing the Sellers' intent to transfer all of their interest in the property, Jones filed a complaint against the Neighbors. Jones claimed in his complaint that the Disputed Parcel was transferred to him by the warranty deed from the Sellers.¹⁹ Jones sought to have the property resurveyed to confirm the boundary between his property and the Neighbors' property. Jones also sought temporary and permanent injunctions to restrain the Neighbors from further clearing the Disputed Tract, along with compensatory damages for trespass arising from clearing that had already been done. The Neighbors filed a motion to dismiss for failure to state a claim, which the trial court granted. Jones appealed.²⁰

On appeal Jones argued that language in the deed describing the property being conveyed should be construed in accordance with the intent of his predecessors in title.²¹ According to Jones, the Sellers intended to convey "all of the interest they acquired in the property by means of the executor's and trustee's deed."²² Jones argued that the recitation in the deed concerning the number of acres being transferred showed clearly the Sellers' intent to convey the Disputed Tract to Jones.²³ The court of appeals rejected Jones' argument and affirmed the trial court's decision.²⁴ In doing so the court noted that the deed to Jones expressly incorporated the 1998 Plat as describing the property being sold and reflected all the interest of Jones' predecessors in title.²⁵ The court relied on the absence of an express covenant in the deed regarding the precise number of acres being transferred in order to find the incorporation of the plat controlling over the general statement of acreage.²⁶

Jones also argued that the supreme court's decision in Wooten v. Solomon²⁷ required a rejection of the 1998 Plat in favor of the 1972 Plat.²⁸ Jones asserted "that 'a previous particular description' of property is determinative of the property conveyed under a deed in the event of a conflict with the plat with which it is associated."²⁹ The court distinguished the facts in Wooten from the facts in Jones and concluded that the rule in Wooten is limited to cases when the plat reference in a deed and other descriptions of the property also contained in the deed are in conflict.³⁰ Further, the court found that, as a result of incorporation, the property description in the 1998 plat was the same as the description contained in the deed.³¹

III. Easements and Restrictive Covenants

The court in Lovell v. Anderson,³² also discussed a topic addressed in a prior survey.³³ The dispute in Lovell concerned the use of a dirt road owned by Jeremiah Earle Field. Field's nephew, Lovell, used the road to access his two properties (the "Three-acre Tract" and the "Thirty-one-acre Tract" respectively). The Three-acre Tract was admittedly accessible from a public highway, but Lovell testified that the Thirty-one-acre Tract was only accessible from the dirt road. Prior to his death, Field granted Lovell permission to use the dirt road on Field's property by issuing the following written statement: "Earle Lovell has permit to go on any of my land, has the right to tell anyone without written permit to leave."³⁴ After Field died, Wendell Anderson, Sr., the executor of Field's estate, demanded that Lovell cease using the dirt road and any other property owned by the estate. When Lovell refused, Anderson filed suit.³⁵

In the complaint Anderson asserted claims for injunctive relief, specific performance, trespass, private nuisance, conversion, and punitive damages. Anderson's claims for...