There is a legal distinction between real property and personal property in Georgia. Therefore, the litigation concerning real property is necessarily different from the litigation concerning personal property which is normally controlled by contract law.

There are numerous types of cases having to do with property disputes. Two common examples are the taking of property by a governmental authority which is called eminent domain and boundary line disputes between adjoining landowners.

There is a great body of real estate law relative to the taxation of land. On numerous occasions the taxing authorities "overtax" a homeowner, and an appeal is necessary. In these situations it is required that the homeowner exhaust his administrative remedies, and after that he or she can seek redress from the court.

There are various forms of ownership of real property. The highest and best is fee simple ownership. A common litigation situation is when two or more persons own a piece of real property and cannot agree on the disposition of the property. This calls for an equitable partition of the property, and the court is required to adjudicate the rights of the parties.

Many times the real property in dispute is not completely owned by a litigant. However, there could be other "bundles of rights" that these persons would have which would require some adjudication. A common example is an easements. Normally all easements are expressed or implied. There are various subcategories under these two major categories.

Another example of less than full ownership of real property is in the area of leasing. There are volumes of cases having to do with leases or rental of property. While the magistrate court normally handles the dispossessory of tenants, this court does not have exclusive jurisdiction, and many times, especially in the case of commercial leases, a petition to the superior court is required to adjudicate the parties' rights.

Probably the area most disputed which was mentioned above is the boundary line dispute. Because of the sometimes crude methods used centuries ago to determine boundary lines, there exist today still very valid disputes over where lines would be located between adjoining landowners.

Sometimes the very title to the piece of property is in dispute. There are various ways to acquire title to the property, the most common of which is by deed. However, property can be acquired by the laws of dissent and distribution, and it can be acquired by other methods, both in the superior court and the probate court. One example often overlooked is the year's support, whereby a widow or minor child can obtain property rights, even though they are disinherited under the will (see Probate Litigation Hyperlink).

With the thousands of brokers and brokerage firms available to assist homeowners, both on the selling and buying sides, there are many disputes relative to the sales contract and other documents required both before and during a closing. Since most people are not able to purchase property outright, some type of security interest is normally required, and a lender becomes involved in the title to the property. Normally a lender would have the power to foreclose the mortgage, which would be yet another method of transferring property.

Most people have contact with a closing attorney when they purchase their residence. A properly closed loan and a policy of owner's title insurance will generally cover up a "multitude of sins" if mistakes have been made in the title to the real property.

We have experience in Real Estate Law. Call McFarland & McFarland today.
770-889-2522

1. Condemnation of Property: Oglethorpe Power Corporation v. Jean D. Spivey, et al., File Number 96-26,643, Forsyth County Superior Court. The power company wanted to take a small portion of the approximately six acres which fronted on a public highway in Cumming, Georgia. The power company only wanted to pay for the actual property taken on the front and never offered to pay consequential damages for the other part of the property. The settlement offer from the power company prior to the special master’s award was for only $1,500.00, the special master awarded $2,500.00, Attorney Robert McFarland appealed to the Superior Court of Forsyth County for a jury trial. Before the start of the trial, the power company offered $8,000 which was rejected. Following the jury trial, the client was awarded $17,500.00. This amount is 1,167% increase over the original offer of the power company.