Justia Real Estate & Property Law Opinion Summaries

Wife and husband were married in 1993 and, after a bench trial, were awarded a final decree of divorce on July 14, 2010. The court granted wife's application for discretionary review under this court's previously instituted Pilot Project for domestic relations cases. On appeal, wife contended that the trial court erred when it improperly designated her Scottrade account as marital property; improperly applied the source of funds rule, improperly made an erroneous finding of fact, improperly valued husband's separate property, and improperly valued property adjacent to the marital home. The court held that the trial court erred in designating the Scottrade account as marital property and the error was not harmless. Accordingly, the order denying the motion for new trial was reversed as to this issue and the matter remanded for the marital property to be equitably divided. The court also held that the trial court did not commit reversible error in its varied treatment of husband's office and of the $210,000 funds from wife's Scottrade account. The court further held that there was no merit in wife's claim that husband's testimony, regarding his contribution, was insufficient proof where the trial court had the right to credit husband's testimony on that matter. The court finally held that the trial court did not err in applying the source funds rule where wife had acquiesced to the trial court's use of county tax records to determine the value of the various real estate properties at issue. The court sustained the trial court's denial of the motion for new trial where wife's remaining enumeration of error was without merit.

Plaintiff, the non-profit corporation that served as the homeowners association for the Skidway Island Community, sued defendants claiming that defendants did not own a strip of land which was located between defendants' eastern boundary line of their property and the marshlands that were located to the east of their property. At issue was whether the trial court properly granted summary judgment in part for plaintiffs, finding that the property at issue was owned by plaintiffs, in that it had been transferred by deed from The Branigar Organization (Branigar), the entity that previously owned the property, to plaintiffs and finding that defendants did not gain title to the property in question by prescription. The court held that because the undisputed evidence revealed that plaintiffs gained title to the disputed property through a proper conveyance from Branigar and that the land in question was not owned by any other entity, the trial court properly granted summary judgment to plaintiffs on its claim of holding the valid title to the property. The court also held that there was no deadline by which the common areas had to be conveyed in order for the conveyances to be valid. The court further held that the trial court did not err in finding that defendants' claim for prescriptive title failed as a matter of law. Accordingly, the judgment was affirmed.

Appellant, a limited liability company that speculated in real estate, brought this appeal to challenge the ruling of the trial court upholding the constitutionality of OCGA 9-13-172.1, authorizing the rescission of foreclosure sales under certain conditions, in its suit against appellee, Countrywide Home Loans (Countrywide), in which appellant asserted it was entitled as high bidder to delivery of the Deed Under Power to the home of appellees, James and Tammi Garland. The court held that the trial court properly upheld the constitutionality of OCGA 9-13-172.1 and correctly found that Countrywide was authorized to and properly rescinded the sale to appellant. The court did not address appellant's remaining arguments.

Appellant, a limited liability company that speculated in real estate, brought this appeal to challenge the ruling of the trial court upholding the constitutionality of OCGA 9-13-172.1, authorizing the rescission of foreclosure sales under certain conditions, in its suit against appellee, Countrywide Home Loans (Countrywide), in which appellant asserted it was entitled as high bidder to delivery of the Deed Under Power to the home of appellees, James and Tammi Garland. The court held that the trial court properly upheld the constitutionality of OCGA 9-13-172.1 and correctly found that Countrywide was authorized to and properly rescinded the sale to appellant. The court did not address appellant's remaining arguments.

Plaintiffs filed suit against defendant seeking a declaratory injunction that defendant did not have an easement on their property, damages for trespass and conversion for a 2007 and 2008 incident, an injunction against further trespass, and attorney fees. Defendant asserted as a defense that the lawsuit was filed after the one-year statute of limitations under OCGA 46-3-204. At issue was whether summary judgment against plaintiffs was proper. The court affirmed the trial court's rejection of plaintiffs' constitutional challenges to the one-year statute of limitations. The court then affirmed in part and reversed in part the grant of summary judgment because issues of material fact remained regarding the existence of a valid prescriptive easement and plaintiffs' trespass and conversion claims based on defendant's 2008 actions were not barred by OCGA 46-3-204.

Appellants filed a petition to quiet title against all the world as to two parcels of land (Tracts 1 and 1A) in Lavonia, asserting a claim of slander of title against Hartwell Railroad Company (Hartwell). Hartwell only disputed appellants' title to the .67 acres of land comprising Tract 1A, claiming that the property was within the 100-foot right-of-way it held on either side of its railroad running through Lavonia. An appointed special master issued an order subsequently adopted by the trial court granting Hartwell's motion and denying appellants' motion. Appellants appealed, arguing that the trial court erroneously concluded that Hartwell held undisputed record and prescriptive title to Tract 1A by relying on certain inadmissible evidence. The court held that, even if the court determined that the trial court erred by concluding that Hartwell had title to Tract 1A as a matter of law, appellants would not be entitled to a reversal of the summary judgment entered in Hartwell's favor in view of the trial court's unchallenged rulings that appellants, as a matter of law, could not prove their own title to the property. As such, appellants could not benefit from resolution of the issues on appeal and the appeal was dismissed as moot.

Appellant owned and operated the Sewell Creek Energy Facility, a "peaking" power plant that began operating in 2000. Appellees, neighbors of the power plant, filed suit in 2007 alleging that the power plant constituted a nuisance. At issue was whether appellants were entitled to summary judgment where the power plant was either a permanent nuisance or continuing nuisance that could be abated. The court found that the power plant's exhaust silencing system, which was an integral part of the gas turbines that generated power, was an enduring feature of the power plant's plan of construction and the noise emanating from the exhaust stacks resulted from the essential method of the plant's operation. Consequently, the exhaust stacks were a permanent nuisance. Thus, the court held that the Court of Appeals erred when it omitted any consideration of whether the nuisance resulted from an enduring feature of the power plant's plan of construction or an essential method of its operation and grappled only with whether the nuisance could be abated at "slight expense." The court held that appellees' action was barred under the statute of limitation for permanent nuisances because they did not file their lawsuit until almost seven years after the plant became operational, unless some new harm that was not previously observable occurred within the four years preceding the filing of their cause of action. The court also held that, to the extent the trial court found that a factual issue remained concerning whether there was an "adverse change in the nature" of the noises and vibrations coming from the plant after the start of the 2004 operating season, the denial of summary judgment was appropriate. By contrast, to the extent that the trial court found that a factual issue remained concerning whether there was an "adverse change in the... extent and amount" of the noises and vibrations after the 2004 operating season, the denial of summary judgment was inappropriate. Accordingly, the court affirmed in part and reversed in part.

These related appeals concern the rights of certain sign companies to construct billboards in areas formerly located in unincorporated Fulton County that are now located in the recently created cities of Sandy Springs, Milton, and Johns Creek and a recently annexed portion of the city of Alpharetta (collectively, "cities"). At issue was whether the trial court erred in granting summary judgment in favor of the sign companies based on its determination that the companies had a vested right to erect the billboards as of the date of their applications were filed. The court rejected the county and cities' arguments and held that the sign companies had vested rights to construct the billboards at issue where there were no valid ordinances regulating the construction of billboards at the time the applications were filed and the sign companies were entitled to construct, maintain, and operate all signs for which they submitted applications. Accordingly, the trial court's grant of summary judgment in favor of the sign companies was affirmed.

Lucien Cabrel died in December 1963 and Cabrel's wife and four minor children were the recipients of a joint award of year's support in 1964. In 2000, Cabrel's two daughters filed a petition to partition real property in Henry and Spalding counties in which property the daughters claimed an interest by virtue of the 1964 joint award of year's support. The daughters also sought an accounting and to recover from their mother income generated by the property between 1964-1997. In Case No. S11A0212, the mother appealed the denial of summary judgment on the partitioning issue and in Case No. S11A0214, the daughters took issue with the trial court's denial of their motion for summary judgment, its failure to conduct a hearing on their motion for attorney fees, and its determinations that they were barred from having an accounting and were not entitled to prejudgment interest. The court held that since the motion to set aside was filed more than three years after the entry of judgment of partition and that judgment was made by a court with jurisdiction, the trial court did not err when it denied the mother's motion to set aside the judgment of partition. The court held also that the partitioning judgment was not appealed and the daughters cannot now complain that they had a greater interest in the property than that which was awarded in 2004; that the trial court did not err in concluding that the daughters were not entitled to income from the property where they did not meet certain contingencies; and that the trial court did not err when it did not award attorney fees since the daughters were not awarded any damages.

Harvey Strother, who was domiciled in Georgia, bequeathed a Florida condominium to his long time mistress, Anne Melican, but prior to his death, he entered into a contract to sell the condominium. Although Strother died before the closing date, the condominium was nevertheless eventually sold pursuant to the agreement he had entered into before he died. When Melican filed an action to collect the proceeds from the sale, the executor and trustee of the testamentary marital trust and the Strother's grandson and beneficiary under the will, filed a response as caveators to the will. At issue was whether the bequest of the real property in question had been adeemed based on the sale and whether Melican therefore was not entitled to the proceeds of the sale. The court held that pursuant to Fla. Stat. 732.606(2)(a), Melican, as the specific devisee of the Florida condominium under the will, was entitled to the proceeds from the sale after Strother's death, as these proceeds had not yet been paid to decedent before he died.