Law Commons^™

Identity Crisis: The Supreme Court Of Georgia’S New Framework May Have Widespread Impact On Extended-Stay Motels And Their Occupants, Dawson B. Welsh

Mercer Law Review

Certainty is a trait valued highly by many, and it is perhaps most valued in the world of business where minimizing risk and maximizing profit is the name of the game. Efficiency Lodge, Inc. v. Neason developed what appeared to be a routine fight over occupancy into one of the most important redefinitions of a legal framework in the field of real estate. The Supreme Court of Georgia’s analysis of the relationships provides a legal framework for Georgia courts to apply when attempting to parse out the rights of the parties by specifically providing a new way for courts to …

Fore! Supreme Court Of Georgia Delivers Loss To Homeowners Asserting An Implied Easement In Their Neighborhood Golf Course, Joey Hargadon

Mercer Law Review

The Supreme Court of Georgia delivered a big win to neighborhood developers and a massive loss to homeowners seeking to enforce easement rights in residential neighborhood features. In WS CE Resort Owner, LLC v. Holland, neighborhood homeowners sought an injunction against the developer of their subdivision to prevent the planned removal and redevelopment of a neighborhood golf course. The court’s decision showcased that a mere label of “golf course” on a subdivision plat is insufficient to show a subdivider’s intent to grant homeowners an easement in the recreational area adjacent to their properties. In clarifying what a petitioner must …

Zoning And Land Use Law, Newton M. Galloway, Steven J. Jones, Joshua Williams

Mercer Law Review

Each annual survey of Georgia zoning and land use law since 2017 has chronicled judicial decisions ostensibly intended to transform legislative zoning decisions into quasi-judicial actions. These include City of Cumming v. Flowers, in which the Supreme Court of Georgia held a local government variance decision, and any other zoning or entitlement decision tightly controlled by the local ordinance, is quasi-judicial and may only be appealed by writ of certiorari, regardless of the mechanism for appeal set out in the local government’s ordinance; York v. Athens College of Ministry, Inc., in which the Court of Appeals of Georgia …

Real Property, Erica L. Sullivan

Mercer Law Review

This Article surveys developments in Georgia real property law between June 1, 2022 and May 31, 2023. This Article will cover several interesting cases decided during the survey period and will also take a look at one of the new legislative updates that may impact practitioners in the future.

From Transient To Tenant Overnite: The Georgia Court Of Appeals Leaves Room For Improvement In The Rights Of Extended-Stay Motel Residents, Kayla Pfeifer

Mercer Law Review

On September 25, 2020, extended-stay motel residents Armetrius Neason, Lynetrice Preston, and Altonese Weaver filed suit against the Efficiency Lodge branch they once considered home. Efficiency Lodge Inc. is a hotel chain that operates under an extended-stay model and primarily caters to low-income residents. Before litigation arose, Efficiency Lodge’s website displayed the slogan, “Stay a Nite or Stay Forever.” Each plaintiff continuously resided at the extended-stay motel for periods ranging anywhere from almost one to five years. They each signed uniform rental agreements, paid weekly rent, and housed their personal belongings in their rooms. Toward the end of their respective …

Real Property, Erica L. Burchell

Mercer Law Review

This Article surveys developments in Georgia real property law between June 1, 2021 and May 31, 2022. The 2021 Calendar year saw interest rates on a fixed-rate thirty-year mortgage hover at or around roughly 3%—oftentimes actually being below 3%. Since the beginning of 2022, those rates have continued on a nearly steady climb, with the average rate for a thirty-year fixed-rate mortgage for the week of May 26, 2022, clocking in at over 5%, a staggering difference from the year before. Rising interest rates have likely cooled demand for refinances. Nationally, while 2022 is showing a decline in new purchase …

Real Property, Erica L. Burchell

Mercer Law Review

This Article surveys developments in Georgia real property law between June 1, 2020 and May 31, 2021. 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. …

Real Property, Linda S. Finley

Mercer Law Review

This Article surveys developments in Georgia real property law between June 1, 2019, and May 31, 2020. 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.

Real Property, Linda S. Finley

Mercer Law Review

This Article surveys developments in Georgia real property law between June 1, 2018 and May 31, 2019. The Article covers noteworthy cases decided during this period by the Georgia Supreme Court, the Georgia Court of Appeals, the United States District Courts, and the United States Bankruptcy Court and includes information about legislation enacted during the survey period which affects real property law.

• Legislation
• Title to Real Property
• Sale of Real Property
• Easements, Covenants, and Boundaries
• Trespass and Nuisance
• Foreclosure of Real Property
• Condemnation and Eminent Domain
• Taxation of Real Property

Remarks And Recreation: Recent Changes In The Recreational Property Act And The State Of The Law Going Forward, M. Blake Walker

Mercer Law Review

In 1965, the Georgia General Assembly passed the Recreational Property Act (RPA or the Act), which generally grants landowners protection from liability when they open up their property for recreational purposes. Almost all states have enacted recreational use statutes, and it has been said that these statutes “codify tort principles that are universally recognized in common-law jurisdictions with regard to duties owed by owners and occupiers of property to those who come upon such property merely as licensees to use it for outdoor recreational purposes.” The Georgia version declares, “The purpose of this [law] is to encourage owners of land …

Real Property, Linda S. Finley

Mercer Law Review

This Article reviews notable real property issues arising from the decisions of the appellate courts of Georgia as well as legislation enacted by the Georgia General Assembly. Real property law is often thought of as stodgy, particularly with the roots of the practice arising from English common law. However, real property law is ever-changing and often touches on a myriad of issues necessitating the need for the topics reviewed in this Article. This Article provides the practitioner, student, or layperson with a guide to those court decisions entered and legislation enacted during the survey period.

Zoning And Land Use Law, Newton M. Galloway, Steven L. Jones

Mercer Law Review

This year and volume, the sixty-ninth, mark the phoenix flight of the Zoning and Land Use Law survey. The survey last appeared in the sixty-first volume of the Mercer Law Review, just as the Great Recession was taking its toll on real estate development. The Great Recession shifted development activity away from constructing new buildings to protecting the value of investment in existing structures from the ravages of the landslide of foreclosures. At the height of the Great Recession, there was virtually no demand for new residential or commercial construction, and new construction and development ground to a halt. …

Real Property, Linda S. Finley

Mercer Law Review

This Article looks at notable issues regarding Georgia real property law during the survey period, including legislation enacted by the Georgia General Assembly and case law decided in Georgia courts. The Author is happy to report she no longer feels compelled to begin the Survey by discussing the dire economic conditions of the state of Georgia or, indeed, the United States as a whole. At the time of the writing of this Survey, RealtyTrac, which reports national foreclosure statistics, released its mid-year 2016 foreclosure report showing that foreclosure activity affecting Georgia real property in the month of July 2016 was …

Real Property, Linda S. Finley

Mercer Law Review

A review of the survey of real property law for the last several years shows an evolution of topics. One year the creation of the Georgia Fair Lending Act, and the duties that new legislation placed upon attorneys and lenders was a critical topic; the following year (and the next), the topic of interest was how title to church property is determined when a congregation splits. For the last few years, the downturn in the Georgia and national economy, and the protection of consumers under foreclosure laws and from the unauthorized practice of law, have seen both judicial and legislative …

Real Property, Linda S. Finley

Mercer Law Review

Any survey of Real Property Law will certainly include a report of the "usual suspects" including boundaries, easements, zoning, and the like, but today's real estate practitioner is expected to be knowledgeable about other related topics such as the unauthorized practice of law, taxation, the rights of consumers in foreclosure, and other varied topics. No survey can discuss every relevant case or topic, but the purpose here is to provide the reader with a broad understanding of "hot" topics and, perhaps, lead the reader to more specific research and debate about these topics.

The Decline And Fall Of Constructive Notice, Leslie Rowe

Mercer Law Review

Georgia law is well settled that an improperly attested deed does not provide constructive notice to subsequent bona fide purchasers of property interests, even if the defective deed appears in the county registry. Nevertheless, there has been confusion over whether a properly attested document filed and recorded contemporaneously with an improperly attested security deed would provide constructive notice, preventing a bankruptcy trustee from using his or her strong-arm power to avoid the security deed. In Wells Fargo Bank, N.A. v. Gordon (Gordon III), the Georgia Supreme Court laid this question to rest once and for all with a …

Real Property, Linda S. Finley

Mercer Law Review

For the last several years, the Author has begun this Survey with a comment about the American economy and the increase in the number of foreclosures facing Georgia homeowners. Although the number of residential foreclosures appears to be decreasing, the plight of homeowners remains a critical issue. Rest assured, this Article does not limit itself to a review of consumer-related law. It also looks at broad topics pertaining to real property, because whether the topic is foreclosure, boundaries, condemnation, or title, ". . . it is just about the dirt."

Real Property, Linda S. Finley

Mercer Law Review

Given continued economic issues, it is tempting to turn any survey of Georgia real property law into a report solely about foreclosure law. The survey period of this Article-from June 1, 2011, through May 31, 2012-saw continued dire economic times for Georgia and the entire United States. As this Article was going to print, RealtyTrac, which reports national foreclosure statistics, released its mid-year 2012 foreclosure report showing that foreclosure activity had again increased in 125 of the nation's 212 metropolitan areas. Of the metropolitan areas making up the top ten on the foreclosure report, only Atlanta registered an increase in …

Real Property, Linda S. Finley

Mercer Law Review

The survey period, June 1, 2010 through May 31, 2011, saw continued dire economic times for Georgia and the entire United States, which were marked with a record-breaking number of foreclosures. Georgia courts and the Georgia General Assembly began to pay attention to the foreclosure process, the diminution of property values, and how these issues affect Georgia families. Although the purpose of this Article is not to specifically address these serious issues, judicial and legislative trends indicate that these issues will be around for some time.

Three Stories About Nature: Property, The Environment, And Ecosystem Services, Keith H. Hirokawa

Mercer Law Review

Property is the process of dividing the world into bits that may be subjected to private control. As such, how we understand the world, its characteristics, and its processes is very important. If, for instance, we think of water as an infinite resource that serves growth needs, we might not be concerned with how that resource is acquired, used, or even wasted. On the other hand, if we believe that water is a scarce and essential resource, we may find that an allocation scheme bears the weight of accomplishing many social and economic objectives. Nature matters because our understanding of …

Real Property, Linda S. Finley

Mercer Law Review

The months since the last survey period from June 1, 2009 to May 31, 2010, have continued to prove perilous to the nation as well as to the State of Georgia, as real estate values have plummeted and foreclosure of real property has reached an all time high. However, as this Article attempts to show, other issues concerning real property abound. As is the case each year, it is difficult to choose the few cases that may be surveyed from the numerous decisions affecting real property law. The cases in this Article were selected either for their legal significance, to …

Real Property, Linda S. Finley

Mercer Law Review

The survey period, from June 1, 2008 to May 31, 2009, has been a volatile period for attorneys who regularly practice in areas involving real estate. Each day the media is replete with stories involving the country's historic economic crisis, and the effects can be seen in Georgia neighborhoods and in resulting legislation. Given our point in history, the cases and legislation discussed in this Survey were chosen for their significance to real property law and to update attorneys who regularly or occasionally practice or render opinions regarding real estate law.

Zoning And Land Use Law, Dennis J. Webb Jr., Marcia Mccrory Ernst, Davené D. Walker, Kelley B. Gray

Mercer Law Review

This Article provides a succinct and practical analysis of the significant judicial decisions in the area of zoning and land use law handed down by Georgia appellate courts between June 1, 2008 and May 31, 2009. The cases surveyed fall primarily within five categories: (1) zoning; (2) condemnation; (3) nuisance and trespass; (4) easements and restrictive covenants; and (5) miscellaneous.

Real Property, Linda S. Finley

Mercer Law Review

Each year, as the number of cases involving real property reported by Georgia's appellate courts continues to increase, it becomes more and more difficult to determine which cases to include in this survey Article. Nevertheless, this Article discusses case law and legislative developments in Georgia real property law from June 1, 2006 through May 31, 2007, selected either for their significance to real property law, to update attorneys who either regularly or from time to time practice or render opinions regarding real property, or to survey trends. However, as the reader may see, at times the cases surveyed were selected …

Real Property, Linda S. Finley

Mercer Law Review

This Article discusses case law and legislative developments in Georgia real property law from June 1, 2005 through May 31, 2006. The cases and legislation discussed here were chosen at times for their significance to real property law or to update attorneys who either regularly or from time to time practice or render opinions regarding real property, and at times simply for their unusual or thought-provoking facts.

Zoning And Land Use Law, Dennis J. Webb Jr., Marcia Mccrory Ernst, Victor A. Ellis, Amitabha Bose, Joseph L. Cooley

Mercer Law Review

This Article provides a succinct and practical analysis of the significant judicial decisions in the area of zoning and land use law handed down by Georgia appellate courts between June 1, 2005 and May 31, 2006. The cases surveyed fall primarily within five categories: (1) condemnation, (2) restrictive covenants, (3) easements, (4) zoning, and (5) miscellaneous.

What's The Use? The Court Takes A Stance On The Public Use Doctrine In Kelo V. City Of New London, Randy J. Bates Ii

Mercer Law Review

By a 5-4 vote in Kelo v. City of New London, the United States Supreme Court upheld the constitutionality of public takings for the purpose of private economic development under the Fifth Amendment's Public Use Clause. In holding that the takings were valid, the Court concluded that it must defer to the state legislature's judgment because the takings were beneficial to the public and were within the state's police power.

Real Property, Linda S. Finley

Mercer Law Review

This Article surveys case decisions and other developments in Georgia real property law during the current survey period (June 1, 2004 through May 31, 2005). The court decisions, legislation, and other information discussed below were chosen for their significance to real property law and, perhaps, their relevance to the day-to-day law practice. Unfortunately, it is not possible to review each important decision due to space limitations. Instead, the author seeks to identify new trends as well as changing law. Perhaps the most important trend in real property law is the criminalization of mortgage fraud relating to residential home loans. The …

Real Property, Linda S. Finley

Mercer Law Review

The Author believes it appropriate to dedicate this Article to a man who has served as a mentor and expert for hundreds (perhaps thousands) of real estate lawyers in the State of Georgia. Affectionately known as "The Death Ray" by his students, who at one time or another admired or feared him, Professor James C. Rehberg had the knack for making a somewhat dry topic come alive (perhaps the exception being the Rule Against Perpetuities). Professor Rehberg was honored in early 2004 by students, faculty, and alumni at his official retirement. While the Author can do little to make this …

Real Property, Linda S. Finley, Scott H. Michalove, James S. Trieschmann Jr.

Mercer Law Review

This Article discusses case law and legislative developments in Georgia real property law during the current survey period. Since the last survey period, a stringent predatory lending law has come and gone, and the courts have decided numerous cases with real property issues. Not every case decided nor every statute enacted can be discussed. The cases and legislation discussed below were chosen for their significance to real property law and their significance to any attorney who either regularly, or from time to time, practices in the field of real property.