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

• Jurisdiction: Georgia,United States
• Publication year: 1998
• Citation: Vol. 50 No. 1

Real Propertyby T. Daniel Brannan^* and

William J. Sheppard^**

I. Introduction

This Article surveys case law and legislative developments in Georgia law of real property during the period from June 1, 1997 to May 31, 1998. The cases and statutes discussed in this Article were chosen for their significance to practitioners in Georgia, and not every case decided or statute passed during the survey period is mentioned. Of particular note, in one case decided during the survey period, the Georgia Court of Appeals clarified the reach of the Commercial Real Estate Broker Lien Act¹ by defining what services will support the filing and foreclosure of a broker's lien under the statute.²

II. Title to Land and Boundary Lines

In Mathis v. Hammond,³ Clyde Hammond filed an action to remove a cloud on his title to certain land created through his wife's execution of a warranty deed for her interest in that property. Prior to 1988, Mr. Hammond held fee simple title to the subject property. In 1988 Mr. Hammond executed a warranty deed by which he conveyed his interest in the property to himself and his new wife, May Mathis Hammond, as joint tenants with rights of survivorship. In May 1993, Ms. Hammond deeded her interest in that property to her children. At the time Ms. Hammond executed that deed, she was terminally ill and was residing in her daughter's home. Ms. Hammond died in September 1993 after having executed a will leaving her property to her children. Shortly after his wife's death, Mr. Hammond executed a deed to the subject property with himself as grantor in which he deeded the survivorship interests to himself. Thereafter, both Mr. Hammond and his deceased wife's children claimed an interest in the property. Mr. Hammond then filed an action to quiet title in himself.⁴

The confusion concerning the effect of the deed from Ms. Hammond to her children arises from a provision contained in O.C.G.A. section 44-6190,⁵ in which Georgia recognizes the creation of a joint tenancy with right of survivorship.⁶ Section 44-6-190 states, in part, that the tenancy estate or interest "may be severed as to the interest of any owner by the recording of an instrument which results in his lifetime transfer of all or a part of his interest."⁷ As the court in Mathis noted, the enactment of that provision may have changed the common law rule regarding joint tenancies with rights of survivorship.⁸ The transfer of an interest by one joint tenant would, under a literal reading of the language of section 44-6-190, result in a termination of the joint tenancy with a resulting tenancy in common between the remaining co-owners and the purchaser.⁹

Apparently Mr. Hammond recognized the uncertainty created by the language of section 44-6-190. In order to avoid any question concerning the application of that statute, Mr. Hammond asserted that the deed from his ex-wife to her children should be canceled because it was procured by undue influence.¹⁰ At the close of the evidence, Ms. Hammond's children moved for a directed verdict, claiming that Mr. Hammond had failed to produce any evidence of undue influence. The trial court denied their motion.¹¹ Also, over the objection of Ms. Hammond's children, the trial court instructed the jury on the "presumption" of undue influence.¹² The trial court said that such a presumption arises when the grantee of property has a confidential relationship with the grantor and the grantor is of "weak mentality."¹³ Ms. Hammond's children argued that the presumption of undue influence was inapplicable because Mr. Hammond failed to produce any evidence that Ms. Hammond was of a "weak mentality."¹⁴ Judgment was entered in Mr. Hammond's favor, and Ms. Hammond's children appealed, asserting error in the denial of their motion for directed verdict and the trial court's instruction to the jury.¹⁵

The supreme court affirmed the trial court's ruling on both issues.¹⁶ First, the court agreed that Mr. Hammond presented sufficient evidence of undue influence to submit the issue to the jury.¹⁷ Specifically, the court found that evidence existed of a confidential relationship between Ms. Hammond and her children based on Ms. Hammond's advanced age, her terminally-ill physical condition, and her residence with her daughter (and the care, shelter, and transportation Ms. Hammond received from her).¹⁸

Second, the court rejected appellants' argument concerning the jury instruction on the presumption of undue influence.¹⁹ In doing so, the court stated that the phrase "weak mentality" in the context of the jury instruction given by the trial court "covers not only feeble-mindedness but also, in the case of an elderly grantor, the domination of the grantor by the grantee, exemplified by the grantee's provision of shelter and care."²⁰ Therefore, the fact that Ms. Hammond was elderly and being provided shelter and care by at least one of the grantees under her deed was evidence to support the trial court's charge on the presumption of undue influence.²¹ For these reasons, the court affirmed the jury verdict in Mr. Hammond's favor.²²

The court in Mathis had an opportunity to clarify the ambiguity created by section 44-6-190. However, the manner in which Mr. Hammond presented his case permitted the court to avoid deciding that issue. As a result of the court's narrowly drawn decision, the uncertainty in Georgia law concerning transfers of a single person's interest in property under a joint tenancy with rights of survivorship remains for future clarification.

In Bell v. Owens,²³ the court of appeals considered a dispute over title to a section of property along a border between two adjoining tracts of land in Haralson County, Georgia.²⁴ Donna Owens, Jason Owens, Bryan Owens, and Dawn Godwin (the "Owens Children") filed an action against William Bell ("Bell") to establish ownership of the disputed property. Bell and the Owens Children owned adjoining parcels of land that, at one point, were part of a single tract owned by Otis Bennett. In 1949 Bennett sold approximately four acres of the subject property to C.M. Clackum. Those four acres were ultimately purchased by Mr. Bell. In 1950 Bennett sold the remaining portion of his property to the Owens Children's predecessor-in-title. The deed for the property now owned by the Owens Children described their property as "the entire parcel 'except four acres sold to CM. Clackum.'"²⁵ Shortly after Bennett's sale of the second tract, the Owens Children's predecessor-in-interest constructed a barbed wire fence ostensibly on the dividing line between the two tracts. In 1987 Bell commissioned a survey, which purported to show that his property extended beyond the fence line and onto the tract then owned by the Owens Children. After Bell cut down trees beyond the barbed wire fence, the Owens Children filed an action against him seeking to establish ownership of the disputed land and seeking to recover damages for the destruction of their fence and trees.²⁶

At trial Bell argued that the Owens Children had failed to produce any evidence that the barbed wire fence was actually constructed on the true boundary between the two properties, and he filed a motion for directed verdict on that basis.²⁷ The trial court denied Bell's motion and permitted the case to go to the jury.²⁸ The jury found that the fence was the boundary line between the two tracts and awarded the

Owens Children actual and punitive damages against Bell.²⁹ Bell appealed the judgment entered on that verdict.³⁰

The court of appeals concluded that the jury was authorized to find the barbed wire fence represented the actual boundary between the two tracts.³¹ In doing so, the court relied on O.C.G.A. section 44-4-6, which provides two mechanisms for determining the location of a disputed boundary line.³² Under that statute, an "uncertain" or "unascertained" boundary line may be established either by oral agreement, if the oral agreement is accompanied by actual possession, or by acquiescence of the parties in a mutually agreed boundary.³³ The court stated that the evidence regarding construction of the barbed wire fence and mutual acceptance of that fence as the boundary line between the two properties for approximately thirty years was sufficient to establish the boundary line pursuant to section 44-4-6.³⁴ Accordingly, the court of appeals found that the trial court properly denied Bell's motion for directed verdict and upheld entry of judgment based on the jury verdict.³⁵

III. Easements

In McCorkle v. Morgan,³⁶ the Georgia Supreme Court stated unequivocally that a "parol license can be revoked where the licensee's enjoyment of the license was not preceded necessarily by the expenditure of money."³⁷ In this case, Clifford E. Morgan, Sr. owned a tract of commercial property located on the northeast corner of West Howard Avenue and Atlanta Avenue. Mr. Morgan conveyed one portion of his property to his daughter, defendant Barbara J. McCorkle, and the remainder to his sons, Clifford E. Morgan, Jr. and James E. Morgan, Sr. (the "Morgans"). Each tract contained a building from which the respective transferees operated a business. The tract transferred to the Morgans had no parking lot, therefore, they used the parking lot on McCorkle's parcel for their customers. Additionally, the front door to the building on the Morgans' property was only a few feet from the boundary with McCorkle's property.³⁸

In 1995 McCorkle notified the Morgans that they should cease using the parking lot on McCorkle's property for their customers. Thereafter, McCorkle constructed a chain link fence on the dividing line between the two tracts. The fence effectively prevented customers from using the parking lot on McCorkle's property in order to conduct business on the Morgans' tract.³⁹

The Morgans filed an action against McCorkle asserting that they had been granted a license to McCorkle's property and they had incurred expenses in execution of that license. Therefore...