Property Flashcards
Fee Simple Absolute
The most complete ownership interest in land, potentially lasting forever. In Ga, the words “and his heirs” are not necessary to create an absolute estate.
Ex. O to A
Life Estate
A property interest that lasts for the life of the holder or another specified person.
- Must not commit waste.
- Can take out a mortgage
- Can transfer to another (but only for A’s life)
- Must make necessary repairs
- Must pay annual taxes
“O to A for life.” (A owns the property only during A’s lifetime, and it reverts to O or O’s heirs upon A’s death.)
Fee Simple Determinable
“O to A so long as the land is used as a park.” (A loses ownership automatically if the land is no longer used as a park.)
F
Fee Simple Subject to Condition Subsequent
a type of defeasible estate where the grantor transfers property to the grantee but attaches a condition that, if violated, gives the grantor the right to re-enter and reclaim the property. Unlike a fee simple determinable (which ends automatically upon the occurrence of a condition), this estate does not automatically end; the grantor must take action to enforce their right of re-entry.
“O to A, but if A ceases to use the land as a school, O may re-enter and reclaim the property.”
Possibility of Reverter
The future interest retained by the grantor is called a possibility of reverter, which takes effect automatically if the condition occurs.
when a property owner transfers land to someone else, but with a condition attached, meaning if that condition is not met, the ownership automatically reverts back to the original owner; for example, if a landowner grants land to a city to build a park “as long as it is used for recreational purposes,” if the city stops using it as a park, the land automatically returns to the original owner due to the “possibility of reverter” clause in the deed.
Does the Court need to intervene in a possibility of reverter?
Unlike a right of entry, where the original owner must take legal action to reclaim the property, a possibility of reverter automatically reverts back to the grantor if the condition is not met.
Right of Entry
this gives the holder a right to enter the property and take possession if a condition subsequent is met.
Tenancy in Common
A form of co-ownership where each co-tenant owns an undivided interest in the property. No right of survivorship.
Joint Tenancy
A form of co-ownership with the right of survivorship. Requires four unities: time, title, interest, and possession.
Georgia requires specific language to create a joint tenancy with right of survivorship; otherwise, the property is presumed to be held as a tenancy in common.
In Ga, a straw man no linger is required to create a joint tenancy. Instead, a sole owner may create a joint tenancy between herself and another person by conveying a joint interest directly to herself and another person.
Adverse Possession
A method of acquiring title to land by possession for a statutory period, under certain conditions (e.g., open, notorious, continuous, exclusive, and hostile).
In Georgia, the statutory period for adverse possession is 20 years for claims without color of title and 7 years for claims with color of title.
Easement
A non-possessory right to use another’s land (e.g., easement appurtenant, easement in gross).
Zoning
Government regulation of land use to promote public health, safety, and welfare.
Easement by Prescription
Acquiring an easement through continuous and uninterrupted use for 20 years in Georgia.
Non-Judicial Foreclosure
Georgia is a non-judicial foreclosure state, allowing lenders to foreclose on property without court intervention, provided proper notice is given.
Lease
A contract granting possession of property for a specified term.
Easement
A right to use another’s property.
Real Property in General
Georgia Law: Georgia has specific rules for real estate transactions, such as requiring attorneys to conduct closings.
Federal Law: Real property disputes in federal court typically apply state property law unless federal statutes (e.g., CERCLA) are involved.
Severing a Joint Tenancy
SIMP — Sale, Inter vivos transfer, Mortgage in a title theory state, or a Partition action.
Constructive Eviction
A tenant may be actually or constructively evicted. When a landlord has allowed the conditions of the premises to deteriorate to the point that the tenant is essentially forced out or has substantially interfered with the tenant’s use and enjoyment of the property, they may have been constructively evicted.
Total constructive eviction is a complete defense to all payment of rent.
Partial constructive eviction will only result in a reduction in rent.
Holdover Tenant/Tenant at Sufferance
When a tenant does not move out at the end of their lease, they will become a periodic tenant if the landlord wants them to remain or accepts any further rent.
A tenant who does not move out at the end of their rent will become a tenant at sufferance if the landlord does not want them to remain/does not accept further rent.
Tenancy at Will
If no time is specified for the termination of a tenancy, it is construed to be a tenancy at will.
Must be created by express agreement, and terminated whenever either party decides.
Also terminates if either party dies or if either party attempts to transfer their interest.
60 days’ notice of termination is required for landlords and 30 day’s notice of termination if required from the tenant.
Periodic Tenancy
Has a set beginning date but no set end date until notice of termination. May be created expressly or by implication with a holdover tenant.
Notice of termination can be oral or in writing, and must be equal to the rental period but no longer than 6 months before.
Estate for Years
A lease with a definite beginning and end date that, in Georgia, is at least longer than five years.
Ends at the set date with no required notice.
Allows for anticipatory repudiationt. The tenant is liable for all unpaid rent if no defense applies.
Rule Against Perpetuities
Georgia’s Rule Against Perpetuities, also known as the Uniform Statutory Rule Against Perpetuities, limits how long assets can remain in a trust before they must be distributed.
GA adopted a “wait and see” rule - that nonvested property interest is valid if it is either certain to vest within the common law fle period or actually does vest within 90 years after its creation.
The rule ensures that trusts don’t last indefinitely.
It can help families minimize wealth transfer tax and protect assets from creditor claims.
It doesn’t apply to personal property in a trust.
GA law on “survivors”
Preferes vested remainders. A deise of a future interest to survivors is presumed to include all those alive at the testator’s death unless a contrary intent is clearly expressed.
Usufruct
Residential leases are commonly usufructs in Georgia. For instance, if a tenant rents an apartment, they hold a usufruct.
Commercial agreements may also create usufructs if the lease grants possession and use but does not transfer any estate or control over the property.
Can a usufruct be transferred?
A usufruct cannot typically be transferred or assigned without the owner’s consent, as it is considered a personal right granted to the usufructuary.
Creation of a Lease
Leases may be created orally, but must be in writing if for more than one year.
Tenant’s Duties in GA
In Ga, tenants may not cut or destroy growing trees, remove permanent fixtures, or otherwise injure the property.
Tenants may use dead or fallen timber for firewood and the pasturage for cattle.
Rights and Duties of Cotenants
Each cotenant has equal rights to possession and profits from 3rd parties.
They also have a duty to pay proportionate shares of taxes/expenses.
There is no duty to make improvements, but a co-tenant who does make improvements may be recompensated from profits.
Co-tenants who make repairs may also be compensated from rent or sale.
PPP = possession; profits; proportionate share of expenses.
Tenancy by the Entirety
Concurrent ownership only for married couples, including a right of survivorship. Not applicable in Georgia.
Joint Tenancy
TTIP — Tenants must take at the same Time, on the same Title, with equal Interest and equal Possession.
Includes a right of survivorship. May be severed by SIMP = sale, inter vivos transfer by either party, mortgage, or partition action.
Tenancy in Common
Each cotenant owns an undivided interest in the whole property.
Requires only the unity of possession, in which each cotenant has the right to possess 100% of the property at the same time.
Does NOT include a right of survivorship like joint tenancy.
Ameliorative Waste
Under common law, no alterations to the land could be made without authorization, and the tenant making alterations would be liable for the cost of returning the property to its original state.
Under modern law, ameliorative waste may be committed if the market value is not impaired and the remaindermen consent, or if a substantial change in the neighborhood justify the improvement.
Permissive Waste
Not taking reasonable steps to avoid damage to the property, such as cutting grass or paying bills.
Voluntary Waste
Intentionally or negligently damaging property.
Waste
The owner of anything other than a fee estate may not commit waste, AKA, they may not cause harm to the estate at the expense of the person who will hold it after them.
Includes voluntary, permissive, and ameliorative waste.
Covenants and Equitable Servitudes
A promise relating to the use of land that benefits and burdens the parties to the promise AND their successors.
Equitable servitudes are enforced via equitable remedies (injunctions), while covenants have monetary damages.
Easement
A nonpossessory right to use the land of another.
Can be either (1) express, (2) implied by prior use, (3) necessary, (4) by plat, or (5) by prescription.
Termination of a Covenant or Equitable Servitude
- Written release
- Estoppel/changed circumstances
- Abandonment with overt act
- Merger of the 2 estates
In Gross vs. Appurtenant Easement
If an easement benefits a person, it is an easement in gross. If an easement benefits a parcel of land, it is an easement appurtenant.
Creation of an Express Easement
Must be in writing per the Statute of Frauds, identify the parties, include words manifesting an intent to create an easement, and a description of the land.
Creation of an Easement Implied by Prior Use
- One parcel of land is now severed into more than one parcel.
- The use giving rise to the easement was in existence at the time of the split.
- The use was apparent.
- The easement was necessary for reasonable enjoyment of the land.
Creation of an Easement by Necessity
- Common ownership of a parcel that is split into two parcels.
- Strict necessity at the time of the severance.
Prescriptive Easement
The period for improved land is seven years.
Unimproved land follows the 20 year rule.
Fixture
Personal property attached to land that transfers with the land.
Adverse Possession
CHANGE — Continuous (including tacking and tolling), Hostile/adverse, Actual, Notorious and Open, Goes on for the statutory period of time (20 years), and Exclusive.
The time period in Ga is 20 years if possession is without written evidence of title and 7 years if with written evidence of title.
State land may not be adversely possessed.
Note. The time period does not begin to run against a person with a disability during the period of the disability.
Adverse Possession - Hostile and Under Claim of Title or Right
Ga law requires that the possession be accompanied by a claim of right (i.e. the possessor must act in good faith).
Adverse Possession - Boundary Disputes and Constructive Possession
Under Ga law, where a person who has paper title to a tract of land is in actual possession of only a part of such tract, possession shall be construed to the extent to the boundary of such tract.
When land is included in the boundaries of more than one tract so that adjacent owners are in constructive possession of the same land, no prescription shall arise in favor of any such owners.
Water Rights
The majority “riparian view” grants reasonable use to anyone who is within the watershed.
The minority “prior use view” grants use only to the first person who takes the water.
Requirements of a Land Sale Contract
- Writing
- Description of the property
- Description of the parties
- Price
- Any conditions on price or payment
- Signatures of the parties against whom enforcement is sought
Marketability of Title
Title must be reasonably free from defects at the time of closing.
Examples of defects include an unknown mortgage or lien, covenants or easements, claims of adverse possession or current zoning violations.
The “covenant of marketable title” is implied in all contracts of land sale, but cannot be enforced after the contract merges with the deed.
i.e. - a real estate contract = marketable title
Under the merger doctrine, parties can only sue on the covenants of the deed after it merges with the contract.
Equitable Conversion
When the contract is formed, title to the land is bifurcated — the buyer takes the equitable title while the seller retains legal title until closing.
Under the majority rule, the risk of loss follows the equitable title, and therefore the buyer has the risk of loss until closing.
Actual Notice
Personal knowledge.
Record Notice
When a competing interest is in the public records/has been recorded, regardless of whether the party has actually checked.
In Georgia, the mortgage/deed must have been attested to/notarized, otherwise it does not constitute notice.
In a notice state, the time of filing is irrelevant.
In Georgia, a grantee is required to record their deed, which gives constructive notice to everyone of the deed’s existence.
A deed can be recorded at any time, but a prior unrecorded deed loses its priority if the purchaser takes the subsequent deed without notice.
Inquiry Notice
When an examination of the property would lead a reasonable person to inquire into competing claims to the property.
Recording Statutes
Under common law, the general rule is first in time, first in right.
Georgia has a race-notice statute — bona fide purchaser who takes without knowledge and records first wins.
Race Statute
First to record wins.
Notice Statute
The first boa fide purchaser, one who pays value without notice, wins.
Race-Notice Statute
The first bona fide purchaser who records first wins.
To prevail under a race-notice statute, a claimant of real property must prove the following four elements:
1) the claimant took subsequent in time to another person claiming ownership of the real property in question;
2) the claimant was a bona fide purchaser for value;
3) the claimant took the property without actual, constructive, or inquiry notice; and
4) the claimant recorded first.
3 Requirements to Convey a Deed
- Donative intent (immediate intent to transfer).
- Delivery (the mental intent to transfer).
- Acceptance (presumed if beneficial to the person to whom it is conveyed).
- Statute of Frauds requirements.
Statutory Right of Redemption
Within twelve months after a foreclosure sale, the borrower can force the lender to sell them back their property at the foreclosure price.
Equitable Right of Redemption
At any time between foreclosure and the sale, the borrower may redeem themselves by paying off the remaining debt owed to the lender. Cannot be waived EVER.
Deed in Lieu of Foreclosure
To discharge a mortgage debt, the borrower can issue a deed to the lender who then takes the property subject to other mortgages. Junior lienholders would not be affected.
Intermediate Theory
Borrower has rights to possession, rent, and profits until default, in which case the lender is entitled to possession, rent, and profits.
Title Theory
Georgia. The borrower retains possession until default, in which the lender takes the right to rents and profits produced by the property.
Lien Theory
The lender receives a lien on the property. The borrower retains possession and the right to rents and profits.
Mortgage Theories
Under Ga law, a mortgage is only security for a debt and passes not title.
i.e. Ga is a lien theory jurisdiction. Therefore a mortgage does not sever a joint tenancy with a right of survivorship
Security Interests in Real Estate
Under foreclosure law in Ga, an action for a deficiency judgment requires judicial approval.
Mortgage Assumption and Novation
When a new buyer assumes a mortgage with a novation, the new buyer alone is personally liable for the mortgage. This is the only scenario in which the original buyer is completely off the hook.
Buyer “Assumes the Mortgage”
The new buyer becomes liable for the mortgage alongside the original borrower. The new buyer become primarily liable, but the grantor/seller remains secondarily liable.
Buyer Takes “Subject to” the Mortgage
The new buyer who takes “subject to” the mortgage has NO responsibility to pay it. The seller/original borrower remains primarily and solely liable. This is the default rule if the language is ambiguous.
Purchase Money Mortgage vs. Future Advance Mortgage
A PMM is a mortgage used to cover the purchase price of the property and, if recorded, has priority over all other types of mortgage. A FAM is a line of credit used for anything else.
Mortgage Note
The borrower’s personal promise to repay a loan. A creditor has the choice to sue the borrower personally (in personam) on the note, or to foreclosure the land through the mortgage.
Mortgage Definition
A security instrument created to secure repayment of a debt. Must be in writing to satisfy the SOF. Not to be confused with the mortgage note.
Quasi-Easement
In Georgia, a quasi-easement may be found when an implied easement is necessary to provide water or other essential resources to one parcel of land after partition of the tract by the common owner.
Notice Requirement to Terminate a Tenancy at Will
In Georgia, a landlord must give 60 days’ notice to terminate a tenancy at will. A tenant needs to give only 30 days’ notice.
Under Georgia law, when and how must a landlord communicate property damages subsequent a lease agreement’s termination?
The landlord must inspect the property and give the tenant a list of damages within three business days after the tenant leaves the premises, including an estimated dollar value of the damage.
Surface Water Rights/”Natural Flow Theory” and the “Reasonable Use” Provision
Every riparian owner is entitled to a reasonable use of the water, and to have the stream pass over their land according to it’s “natural flow”, subject to the reasonable use of the water by other riparian owners -may use reasonable means to alter the flow of diffuse surface water, even if surrounding landowners are harmed
Riparian owners cannot use water on non-riparian land.
Riparian owners cannot divert the natural flow of water to create a new watercourse.
Riparian owners must obtain consent before removing floating logs from non-navigable streams.
Georgia Specifications for Adverse Possession
Georgia requires adverse possessors to have a good-faith belief that they have a legal right to possess the property.
Under Georgia law, when is a landlord liable for tort damages?
In Georgia, a landlord is liable to third parties for damages arising from defective construction or failure to keep the premises in good repair.
However, a landlord may not be held liable for injury when the tenant had the same (or greater) knowledge of the alleged defect and failed to exercise ordinary care, unless the defects rendered the premises unsafe or uninhabitable.
Any liability on the landlord’s part for the criminal activity of third parties would have to stem from a breach of the duty to exercise ordinary care in keeping the property safe from foreseeable attacks (those that are substantially similar in type to prior crimes).
How is land recorded in Georgia?
Georgia uses a grantor-grantee index. Deeds are recorded in the county where the land is located.
Abandonment of an Easement
In Georgia, an easement is presumed abandoned if it remains unused for the prescriptive period.
The presumption of abandonment does not apply to easements acquired by grant, because the owner of an easement by grant has no duty to use the easement.
Abandonment of a granted easement requires clear evidence of intent to abandon (an overt act).
Termination of a Covenant in Georgia
In Georgia, termination requires that at least 51% of the record owners of the property execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated.
This document must be recorded in the office of the clerk of the superior court of the county where the land is located within the two years before the end of any 20-year period of the covenant.
Riparian Rights Doctrine
In dealing with water rights, the riparian doctrine states that water belongs to the person whose land borders a body of water. Riparian owners are permitted to make reasonable use of this water provided it does not unreasonably interfere with the reasonable use of this water by others with riparian rights.
Georgia follows the riparian-rights doctrine, BUT it does not allow landowners to divert water from its normal course in a way that would interfere with the enjoyment of it by the next owner.
Tenant Failure to Pay Rent
A landlord may demand possession from a tenant who fails to pay rent, and he may go before a court if the tenant refuses. The tenant may pay all rents owed plus the cost of the warrant within seven days from service of the summons. This is a complete defense to the suit, but the landlord does not have to accept the payment more than once in a 12-month period.
Duty and Rights of Landlord
The landlord has a duty to
1) keep the premises in repair, including substantial improvements placed on the premises with his consent, and is liable for damages caused by failure of the duty, where the landlord knew or should have known of the condition.
- the landlord is not liable for damages to a third party resulting from the negligence or illegal use fo the premises by the tenant.
2) If flooding has damaged any portion of the living space of the premises at least three times during the preceding five years, the landlord must notify the prospective tenant in writing. Failure to do so creates a tort liability for damages to the tenant or resident’s property proximately caused by flooding.
3) A landlord may not knowingly and willfully suspend the furnishing of utilities to a tenant until after the final disposition of any dispossessory proceeding.
A landlord has a right to distrain (keep your stuff) for rent if the tenant is attempting to remove belongings from the property.
Trade Fixtures (Business Tenant)
Ga requires a tenant to remove trade fixtures during the tenancy or while in possession of the premises.
After the term and possession are ended, any remaining trade fixtures are considered abandoned and become the property of the landlord.
Shelves, Machinery, Display cases, Hand rails, Telephone lines, Product display counters, and Hairdresser chairs.
Under Georgia law, what rights or obligations do persons owning non-navigable waters possess?
The owner of a non-navigable stream has the same exclusive possession of the stream as any other part of the owned land.
Notice for Termination of an at-will tenancy
In Georgia, where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will.
60 days’ notice from the landlord and 30 days’ notice from the tenant is required to terminate a tenancy at will.
Ga Rules Regarding Life Estates
- Creation by grant- the holder of a feast, simple absolute must expressly state that he conveys only a life estate if that is his intent.
- The life tenant is obligated to make necessary repairs to the property.
- The life tenant can use or sell any nonrenewable resources on the land in accordance with how the grantor used it.
- Life tenant is required to pay all annual taxes that become due. However, if failure to pay such taxes might result any foreclosure sale, the life estate may be forfeited to the remainder man.
What is Title by Prescription in GA?
Title by prescription, also known as adverse possession, is a legal process in Georgia that allows someone to claim ownership of property through continuous possession over a period of time.
Requirements
The possession must be hostile, meaning it’s against the legal owner’s will
The possession must be actual, meaning the trespasser has full control of the property
The possession must be exclusive, meaning the trespasser is the sole possessor of the land
The possession must be open and notorious, meaning the trespasser acts like the true owner
The possession must be continuous for the required statutory period
Statutory period
The statutory period is usually 20 years, but can be as short as 7 years if the trespasser had “color of title”
What is the estate, who is “O” and “A”: O to A while A attends the University of Mississippi.
Estate: Fee Simple Determinable O: Grantor with Possibility of Reverter A: Grantee
Under Georgia law, what is a landlord’s duty to mitigate?
Georgia does not require a landlord to attempt to mitigate damages related to a breach of a lease. The landlord may choose between: • terminating the lease, • obtaining another tenant while holding the original tenant liable for any deficiency that may occur, or • permitting the premises to remain vacant while collecting the agreed upon rent from the original tenant. The landlord may “distrain for rent” (seize the tenant’s property) as soon as rent becomes due, if the tenant is moving out. The landlord can also apply for a distress warrant after making a statement of facts, under oath. If the landlord accepts the tenant’s surrender, or if the tenant successfully terminates the lease, then the landlord must make reasonable efforts to re-lease the premises and mitigate damages.
How does a fee simple terminate?
The fee simple is a present estate that does not terminate UNLESS the owner dies intestate without heirs. In that case, the property escheats to the state.
Under Georgia law, how are “trade fixtures” handled?
Trade fixtures must be removed during the tenancy or while the tenant is in possession of the property. Any trade fixtures remaining on the property once the term has ended and the tenant is no longer in possession are considered abandoned and become the landowner’s property.
Give examples of language commonly used in a fee simple subject to condition subsequent estate.
• . . . provided that . . . . • . . . on condition that . . . . • . . . but if . . . .
Under Georgia law, how is “heirs,” “heirs of the body,” “lineal heirs,” “lawful heirs,” “issue,” or similar words or phrases interpreted?
As “children,” regardless if the parents are deceased or still living. The living children and the descendants of any deceased children (by representation) when the estate vests will take.
Under Georgia law, what is a landlord’s duty to repair?
Georgia law requires the landlord to keep the premises in good repair, including all substantial improvements made by the tenant with his consent. This duty does not exist when there is a term of years instead of a usufruct. If the landlord breaches his duty to repair, the tenant may make the repairs and either seek reimbursement or deduct the repair costs from his rent.
What is the estate, who is “O,” “A,” and “B”: O to A for the life of B.
Estate: Life Estate pur autre vie O: Grantor with Reversion right A: Grantee B: Measuring Life
Under Georgia law, when and how may a former tenant respond to property damage notice subsequent a lease agreement’s termination?
The tenant has the right to inspect the property within five business days after the termination of the lease and specify in writing any items in the list he disputes.
What is a life estate that measures by the life of a third party?
Life estate pur autre vie
What future interest does the grantor retain in a fee simple subject to condition subsequent estate?
Right of entry (a.k.a., right of re-entry or power of termination)
Under Georgia law, what additional requirement, if any, is necessary to obtain an easement by necessity?
A grantor is NOT entitled to an easement simply because she sold the land that provided the only access to a landlocked parcel.
Who (as it pertains to freehold estates) may inspect land for waste and seek an injunction to prevent waste?
Any remainderman or grantor with a reversionary interest.
What is a “Fee Simple” or “Fee Simple Absolute”?
It is absolute ownership of potentially infinite duration, freely alienable, and has no accompanying future interest.
Under Georgia law, how must a landlord process security deposits?
If the landlord requires a security deposit, then the deposit must be placed in an escrow account. He must hold the deposit in trust for the tenant and let the tenant know (in writing) the location and account number of the escrow account. Alternatively, the landlord may keep an effective surety bond with the clerk of the superior court in the county in which the property is located.
If a grantor does not acknowledge a deed can it still be recorded?
Yes. It can still be recorded upon the affidavit of the subscribing witness made before one of the above-listed court officers.
How does Georgia law handle “reservation of easements”?
There is no implied reservation of an easement by a grantor in Georgia
What is the estate, who is “O” and “A”: O to A provided that the homestead on the estate remains A’s principle residence.
Estate: Fee Simple subject to Condition Subsequent O: Grantor with right of entry A: Grantee
Under Georgia law, how does the “demand for possession” operate?
A landlord may demand possession from a tenant at sufferance and may go before a court if the tenant refuses to tender possession.
Under Georgia law, what is the time limit for convenient that run with the land?
Restrictive covenants do not run for more than 20 years in any municipality or county area that has adopted zoning laws, unless they were created before the zoning law was enacted. This time limit does not apply with respect to covenants in favor of or benefiting the United States, its agencies, or political subdivisions, or land held for use by the public. In the case of a subdivision with at least 15 individual plots, covenants are automatically renewed every 20 years unless they are terminated.
Under Georgia law, what satisfies the “merger” termination of an easement?
Georgia courts have only required both the dominant and servient estates to be owned by the same person. This is also true when the owner of both estates is a tenant in common with others.
Under Georgia law, may a testator exclude class members?
In Georgia, a testator may dispose of property in a way that completely excludes his spouse or descendants. A testator may also exclude a member from a class so long as the testator’s intent to exclude is clear and convincing.
Under Georgia law, what concurrent estates are available?
Only tenancy in common and joint tenancy. Tenancy by the entirety is not available.
Under Georgia Law, what is “Propensity for Flooding” rule?
If the living space of the property has been damaged by flooding at least three times during the preceding five years, then the landlord must give the prospective tenant written notice of this propensity for flooding. If the owner does not give notice, then he will be liable for any damages proximately caused by flooding.
Under Georgia law, how do you determine if a picture is a part of the estate?
If an item is intended to permanently remain, then it is a fixture regardless of whether it is actually attached to the land.
What is the estate, who is “O,” “A,” and “B”: O to A on the condition that the property is used for agricultural or residential uses, then to B.
Estate: Fee Simple subject to Executory Interest O: Grantor A: Grantee B: Executory Interest
Under Georgia law, how does “the doctrine of worthier title” apply?
It doesn’t apply.
What is a “life estate”?
Life estates are limited by the duration of a particular person’s life.
Under Georgia law, what is “Private Way by Compulsory Sale”?
A property owner may petition a court for a private right-of-way over another property owner’s land when he has no other means of accessing his property. The private way cannot be wider than 20 feet. A successful petitioner and his successors must keep the private way open and in good repair, as well as pay the property owner for any damages. Failure to do so for at least one year is considered abandonment, and title to the private way reverts back to the property owner.
Under Georgia law, what effect, if any, does affixing a seal have on a deed?
Georgia does not require affixing a seal. Affixing a seal extends the time an action can be brought on the deed from six year to twenty years.
What is “the right of survivorship”?
Upon the death of a joint tenant, the interest terminates and automatically goes to the surviving joint tenant.
What is the estate, who is “O” and “A”: O to A
Estate: Fee Simple Absolute O: Grantor A: Grantee
What are the future interests available in real property estates?
• Reversion (or “reverter”) • Possibility of Reverter • Right of Entry • Remainder • Executory Interests
Under Georgia law, how is a estate correct if it breaches the Rule against Perpetuities?
An interested party may petition a court to reform the disposition. The disposition must be reformed in a way that “most closely approximates the transferor’s manifested plan of distribution” and stay within the 90-year time frame.
What is the estate, who is “O” and “A”: O to A while A attends law school.
Estate: Fee Simple Determinable O: Grantor with Possibility of Reverter A: Grantee
What rights does a life tenant maintain?
• Right of possession • Right to all rents and profits during possession • Right to lease, sell, or mortgage property
What is a “joint tenancy”?
When two or more individuals own property with the right of survivorship.
Under Georgia law, how does “color of title” affect title by prescription?
If land is included in the boundaries of multiple tracts and the adjacent owners are in constructive possession of the same land, then none of these owners can acquire title to the land by prescription.
What is the estate, who is “O” and “A”: O to A for life.
Estate: Life Estate O: Grantor with Reversion right A: Grantee and Measuring Life
Under Georgia law, is consideration necessary in a deed for land sold?
Consider is required. Nevertheless, Georgia courts have allowed deeds without consideration as “voluntary conveyances.”
Under Georgia law, what rights do judgment creditors hold?
Judgment creditors do not hold the same rights as bona fide purchasers for value. The rights of a judgment creditor are inferior to the prior equitable rights of a mortgagee.
What is the estate, who is “O,” “A,” and “B”: O to A, but if the land is used to grow beats the property returns to O then to B.
Estate: Fee Simple subject to Executory Interest O: Grantor A: Grantee B: Executory Interest
Under Georgia law, what is the rule of ademption?
When a testator exchanges property that is the subject of a specific testamentary gift for other similar property, Georgia will infer that the testator intended for the new property to substitute the property listed in the specific gift. This is also true when the testator merely changes the investment of a fund.
How does Georgia law handle “dedication”?
When the recorded plat designates streets but no fee-simple title is granted, the presumption is that only an easement has been transferred tot he county.
Under Georgia law, when must a co-tenant “account” to his co-tenants?
He will have to account to his co-tenants if he: • receives rent or other profit from the property, • commits any waste, • deprives his co-tenant of the use of his fair portion of the property, • appropriates the property to his exclusive use, or • uses the property in a manner that must necessarily be exclusive. He will also be liable for rents and profits as the agent/bailee of his co-tenants if he receives more than his share.
What is the estate, who is “O” and “A”: O to A, but if the land is used to grow beats the property returns to O.
Estate: Fee Simple subject to Condition Subsequent O: Grantor with right of entry A: Grantee
Under Georgia law, what is the statutory period for title by prescription?
Georgia requires 20 years of uninterrupted and continuous use, as at common law. If possession is “under written evidence of title,” only seven years is required. If the written title is forged or fraudulent and the adverse possessor had actual notice when he began possessing the property, he cannot establish title by prescription based on the possession.
What are the types of concurrent estates?
• Tenancy in Common • Joint Tenancy • Tenancy by the Entirety
Does Georgia recognize an “easement of light”?
If a grantor sells a house to a grantee and the light necessary for the reasonable enjoyment thereof comes from or over neighboring property OWNED BY THE GRANTOR, then an easement of light and air over such lot passes as an incident to the house being sold.
Under Georgia law, what is a “Lis Pendens” filing?
When a lawsuit is pending that could affect title, any party may record a lis pendent that serve as notice to third parties of the claims pending in the lawsuit.
In Georgia, what type of lease does a landlord convey if the terms are for fewer than five years?
Usufructs.
Can a usufruct create privity of estate?
No, a usufruct is not an estate, so a landlord and an assignee of a usufruct cannot be in privity of estate.
Under Georgia law, how is a licensed revoked?
Georgia law allows an oral license to be revoked whenever it can be revoked without harming the license holder. If the license holder detrimentally relied on the license and incurred expense, then it becomes an easement appurtenant.
Under Georgia law, is an electronic signature permitted to record a deed?
Yes, Georgia has adopted the Uniform Electronic Transactions Act.
What is the estate, who is “O” and “A”: O to A and heirs
Estate: Fee Simple Absolute O: Grantor A: Grantee
Under Georgia law, how does ownership disability affect title by prescription?
In Georgia, the statutory time period will not run against a true owner afflicted with a disability for the duration of his disability. When the disability is removed, any prior possession may be tacked to the subsequent possession.
Under Georgia law, what is the scope of an express easement?
Unless the original easement says otherwise, only a change in the character of use will violate the easement.
Under Georgia law, what occurs if a landlord withholds any part of the security deposit?
If a landlord wrongfully withholds any part of the security deposit unintentionally as a result of a bona fide error, then he is liable for only that amount. Otherwise, the landlord is liable for triple the amount withheld, plus attorney’s fees.
Under Georgia law, how are owner granted “lateral support”?
If title in adjoining properties is derived from a common grantor, then the lateral support owed includes the weight of walls and other burdens that may be on it. If there were adjoining buildings when the common grantor sold the land, then that right extends to the lateral support that each adjacent wall gives to the other. A property owner must give the other proper notice before excavating.
Under Georgia law, how is a tenancy at sufferance converted into a tenancy at will?
Any indication that the landlord is giving the tenant permission to remain on the property will convert a tenancy at sufferance into a tenancy at will.
Under Georgia law, what is the required term for easement by prescription?
A prescriptive easement in improved land can be acquired after seven years of uninterrupted use. For wild lands, it takes 20 years. Even if use of the property is allowed, it may become adverse when the property owner has notice that the user intends to make the property his own.
What is a “Fee Simple Determinable”?
Fee simple determinable is a present fee simple estate limited by specific durational language.
Do a grantor’s possibility of reverter terminate at death?
No. A possibility of reverter is freely alienable by the grantor, both during his or her life and upon his or her death.
How may a joint tenancy sever?
(1) Inter vivos (lifetime) transfer (2) Intentionally killing a co-tenant
Under Georgia law, what rights or obligations do persons owning non-navigable waters possess?
The owner of a non-navigable stream has the same exclusive possession of the stream as any other part of the owned land.
Under Georgia law, when must a tenant in common share rents?
A tenant in common does not have to pay his co-tenants rent as long as he uses only his share of the property and does not remove any of the property’s “essential value” (oil, natural gas, etc.).
Under Georgia law, how does payment of taxes affect title by prescription?
Payment of taxes will not establish adverse possession on its own.
Under Georgia law, are there any exceptions to the “duty of fair dealing”?
If the interests of the co-tenants arise at “different times by different instruments and under circumstances that show there is no good reason to recognize mutual fiduciary duties,” then the general rule that co-tenants share a duty of fair dealing may not apply.
Under Georgia law, what is “constructive notice”?
Georgia requires that a mortgage be attested by or acknowledged before a notary and one additional witness to constitute constructive notice. A mortgage that is recorded without due attestation does not constitute notice to subsequent bona fide purchasers.
What is required to be categorized as a “freehold”?
(1) Immobile (either land or some interested derived from or affixed to land) (2) The ownership interest must be for an indeterminate duration.
Under Georgia law, how is surrender of property different from abandonment of property?
To show a surrender, there must be a mutual agreement between the landlord and tenant; the mere taking of the keys to the leased premises by a landlord does not amount to an acceptance of a surrender of a lease.
Under Georgia law, how is survivorship contingency’s handled if stated in a conveyance?
Unless contrary intent is expressed, the words of survivorship in a conveyance require only a remainderman to be living at the time of the testator’s death.
What is the estate, who is “O,” “A,” and “B”: O to A while A attends law school then to B.
Estate: Fee Simple subject to Executory Interest O: Grantor A: Grantee B: Executory Interest
How may tenant’s assign usufructs?
A usufruct may not be assigned or sublet without the landlord’s consent.
Under Georgia law, what is the “witness” requirement for a deed to be recordable?
Two disinterested witnesses or a notary.
Under Georgia law, what is required to impose greater restrictions on the use or development of the land by changing a covenant?
If the parties wish to change a covenant to impose a greater restriction on the use or development of the land, then the owner of the affected property must agree to the change in writing, or it will not be enforced.
What is the estate, who is “O” and “A”: O to A on the condition that the property is used for agricultural or residential uses.
Estate: Fee Simple subject to Condition Subsequent O: Grantor with right of entry A: Grantee
Under Georgia law, what occurs if a tenant fails to pay rent?
A landlord may demand possession from a tenant who fails to pay rent, and he may go before a court if the tenant refuses. The tenant may pay all rents owed plus the cost of the warrant within seven days from service of the summons. This is a complete defense to the suit, but the landlord does not have to accept the payment more than once in a 12-month period.
In Georgia, what is necessary to create a tenancy for years?
A tenancy for years will be created only if the lease is longer than five years or the lease states that the parties intended to create an estate and not a usufruct. It is presumed that a lease of longer than five years creates a tenancy for years, but the presumption may be overcome if facts show that the parties intended to create only a usufruct.
What is required to create a joint tenancy?
The Four Unities: (1) Unity of Possession – equal possession rights (2) Unity of Interest – equal interest (3) Unity of Time – interest occurred at the same time (4) Unity of Title – interest created using the same instrument
Does Georgia use riparian water rights or prior appropriation water rights?
Georgia follows the riparian-rights doctrine, BUT it does not allow landowners to divert water from its normal course in a way that would interfere with the enjoyment of it by the next owner.
What is a defeasible fee?
A defeasible fee is ownership of potentially infinite duration that may be terminated by the occurrence of an event.
Under Georgia law, what is necessary to petition a court for a private way by compulsory sale?
The individual must own real estate or any interest therein. A tenant holding only a usufruct cannot pursue an easement by necessity under this section.
Under Georgia law, how does the “rule of destructibility” apply?
Georgia law does not recognize the common-law rule of destructibility. Instead, the grantor’s reversion becomes possessory, and the person holding the continent remainder takes a springing executory interests, which becomes possessory if and when the condition precedent is met.
What do tenants in common possess?
• No right of survivorship, so each tenant can devise or freely transfer his or her interest to anyone. • Undivided interest with unrestricted rights to possess the whole property.
Give example of language present in a Fee Simple Determinable estate.
• . . . so long as . . . . • . . . while . . . . • . . . during . . . . • . . . until . . . .
Under Georgia law, what is ownership of real property transferred to a person who exercises exclusive, physical possession of that property for a statutory period?
Adverse Possession or Title by Prescription
What is the estate, who is “O” and “A”: O to A and heirs until A gets married.
Estate: Fee Simple Determinable O: Grantor with Possibility of Reverter A: Grantee
Under Georgia law, what is necessary to terminate a covenant?
In Georgia, termination requires that at least 51 percent of the record owners of the properties affected execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated. This document must be recorded in the office of the clerk of the superior court of the county where the land is located within the two years before the end of any 20-year period of the covenant.
What unique obligations does a life tenant possess?
• Obligation to to pay all ordinary taxes on land and interest on mortgage associated with income earned. • Taxes and mortgage interest to the extent of the reasonable rental value of the land. • Duty not to commit waste.
Under Georgia law, what is “the virtue of present covenants”?
A purchaser obtains all the rights that any former owner of the land under whom he claims it may have had, unless the covenant specifically stated it was not to be transmitted with the land.
What is a “fee simple subject to condition subsequent”?
A fee simple subject to condition subsequent is a present fee simple that is limited in duration by specific conditional language.
Under Georgia law, what damages are available under the virtue of present covenants?
Damages are generally measured by the purchase price of the property with interest. If the jury determines that the use of the property was equal to the interest, then an equitable setoff is allowed. If there was no purchase price (if the transfer was a gift), then the measure is the value of the land at the time of the exchange.
Under Georgia law, may a landlord knowingly and willfully withhold heat, light, or water services?
A landlord may not knowingly and willfully withhold heat, light, or water service from a tenant until a final disposition has been reached on any dispossessory proceeding by the landlord against such tenant.
What is the estate, who is “O” and “A”: O to A and heirs so long as A is an accountant.
Estate: Fee Simple Determinable O: Grantor with Possibility of Reverter A: Grantee
Who is the real property “buyer” or “recipient”?
The grantee
What is the estate, who is “O,” “A,” and “B”: O to A and heirs so long as A is an accountant then to B.
Estate: Fee Simple subject to Executory Interest O: Grantor A: Grantee B: Executory Interest
Under Georgia law, what satisfies the “abandonment” termination of an easement?
n Georgia, an easement is presumed abandoned if it remains unused for the prescriptive period. The presumption of abandonment does not apply to easements acquired by grant, because the owner of an easement by grant has no duty to use the easement. Abandonment of a granted easement requires clear evidence of intent to abandon.
Under Georgia law, how is land recorded?
Georgia uses a grantor-grantee index. Deeds are recorded in the county where the land is located.
What is the estate, who is “O,” “A,” and “B”: O to A for life, then to B.
Estate: Life Estate O: Grantor. A: Grantee and Measuring Life B: Possesses Remander, which vests at A’s death.
What occurs when a condition in a fee simple subject to condition subsequent estate is satisfied?
Nothing. The grantor must affirmatively demonstrate intent to terminate the estate.
What are the various executory interests?
• Shifting executory interest • Springing executory interest
Who is the real property “seller” or “donor”?
The grantor
Under Georgia law, what is a “attestation” requirement?
Georgia requires all deeds not filed electronically to be attested and acknowledged with at least two witnesses. Deeds may be attested by a judge or magistrate, a notary public, or a calker or deputy clerk of a superior court or of a city court created by special act of the General Assembly.
Under Georgia law, what is the “implied obligation of rent”?
A Georgia court will imply an obligation to pay rent when the plaintiff holds title to land occupied by the defendant. There is no rent obligation implied when the defendant holds the property in adverse possession or when the defendant’s entry onto the property was “not under the plaintiff.”
Under Georgia law, when is a landlord liable for tort damages?
In Georgia, a landlord is liable to third parties for damages arising from defective construction or failure to keep the premises in good repair. However, a landlord may not be held liable for injury when the tenant had the same (or greater) knowledge of the alleged defect and failed to exercise ordinary care, unless the defects rendered the premises unsafe or uninhabitable. Any liability on the landlord’s part for the criminal activity of third parties would have to stem from a breach of the duty to exercise ordinary care in keeping the property safe from foreseeable attacks (those that are substantially similar in type to prior crimes).
Under Georgia law, what type of damages may a landlord keep the security deposit to repair?
The landlord may not keep the security deposit to cover ordinary wear and tear, unless there was negligence, accident, or abuse of the premises by the tenant, members of his household, or guests. However, the landlord may keep the deposit for nonpayment or late payment of rent, for abandonment of the premises, for nonpayment of utility charges, for repair work or cleaning contracted for by the tenant with third parties, for unpaid pet fees, or for actual damages caused by the tenant’s breach, though the landlord must try to mitigate those damages.
Under Georgia law, how does intent affect title by prescription?
Georgia requires adverse possessors to have a good-faith belief that they have a legal right to possess the property.
What obligations, if any, occur if a tenant in common leases his or her interest?
The other tenants in common are obligated to share possession with the lessee, and they are entitled to a share of the rental profits from the lessor-tenant in common.
What is the grantor’s retained future interest in the fee simple determinable estate?
Possibility of reverter
How does Georgia Law handled “exoneration of liens”?
Georgia applies the common law rule unless the will states otherwise. If a testator makes a specific devise of real property that is subject to an encumbrance then the devisee is entitled to have the land “exonerated” by payment of the encumbrance from eh remaining assets in the testator’s estate.
What is Georgia’s recording statute?
Georgia has a race-notice statute.
What is Georgia’s anti-lapse statute?
Georgia’s anti-lapse statute applies to any beneficiary who is dead when the will is executed or otherwise dies before the testator but has descendants living at the death of the testator. If the beneficiary is treated as having predeceased the testator because of a divorce or an annulment or because the beneficiary is responsible for the death of the testator, then the gift vests in the beneficiary’s descendants who are also the testator’s descendants.
How may an owner transfer real property ownership?
Ownership of real property may be transferred by sale, by gift, or, upon death, by devise or intestate succession.
What are the three types of waste?
(1) Affirmative waste – result of overt conduct that causes a decrease in the value of the property. (2) Permissive waste – tenant permits the premises to deteriorate through neglect, a failure to preserve the property, or a failure to reasonably protect the property. (3) Ameliorative waste occurs when a change in use increases the value of the property.
What is the estate, who is “O,” “A,” and “B”: O to A provided that the homestead on the estate remains A’s principle residence then to B.
Estate: Fee Simple subject to Executory Interest O: Grantor A: Grantee B: Executory Interest
What is the estate, who is “O,” “A,” and “B”: O to A while A attends the University of Mississippi then to B.
Estate: Fee Simple subject to Executory Interest O: Grantor A: Grantee B: Executory Interest
How does Georgia law handle surface water rights?
Georgia follows the natural flow theory modified by a reasonable-use provision. Every riparian owner is entitled to a reasonable use of the water and to have the stream pass over his land according to its natural flow, subject to the reasonable use of the water by other riparian owners.
What is a “fee simple subject to executory interest”?
A present fee simple estate that is limited in duration by either conditional language or durational language, such that it will terminate upon occurrence of the specific condition, and title will pass to a third party.
Under Georgia law, when and how must a landlord communicate property damages subsequent a lease agreement’s termination?
The landlord must inspect the property and give the tenant a list of damages within three business days after the tenant leaves the premises, including an estimated dollar value of the damage.
Under Georgia law, what is the notice requirement to terminate a tenancy at will?
In Georgia, a landlord must give 60 days’ notice to terminate a tenancy at will. A tenant needs to give only 30 days’ notice.
Regarding mortgages, is Georgia a lien theory state of title theory state?
Georgia is a lien theory state.
What is the “duty of fair dealing”?
Co-tenants share a duty of fair-dealing, such that an acquisition by one co-tenant that affects the estate owned by all co-tenants is considered an acquisition by all co-tenants.
What are the various remainder interests?
• Vested remainder ° Vested subject to open ° Vested subject to complete • Contingent remainder
What are “fee tail,” and are they permitted under Georgia law?
Fee tail is a freehold estate limiting the estate to the grantee’s lineal blood descendants by specific words of limitation (e.g., heirs of the body). Georgia does not recognize fee tail estates. It is treated as a fee simple absolute estate.
Describe Georgia’s Marketable Title Act.
In Georgia, a prima facie case in title actions exists upon showing good record title for a period of forty years.
What occurs when a condition in a fee simple determinable estate is satisfied?
The grantor automatically regains the estate through his or her possibility of reverter rights.
Under Georgia law, when may an easement be implied?
In Georgia, an easement can be implied when the right is necessary to the enjoyment of lands granted by the same owner. An easement is not reasonably necessary if it is simply more convenient.
Under Georgia law, when is a “quasi-easement” likely to be found?
In Georgia, courts have found quasi-easements only when an implied easement is necessary to provide water or other essential services to one parcel of land after partition of the tract by the developer or other common owner.
Under Georgia law, must a person use a “straw man” to create a co-tennancy relationship between the owner and another person?
No, Georgia does not require a straw man to create a joint tenancy.
