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Condo | HOA Lawyers

Implied Easements – Can You Prohibit a Neighboring Property Owner from Changing the Use of its Property?


This case involved a dispute between the owner/operator of a golf course and the owners of adjacent property in a residential community.  Originally all the land was owned by one entity, that then sold lots overlooking the golf course at a premium.  The deed for the property in the residential community described the property by reference to the lot and the recorded subdivision plat that included a map of the subdivision depicting a golf course.  The plat map was recorded with the county.  The developer later transferred the golf course to another entity.  The purchaser, CE, was losing money on the golf course and proposed to develop the land.  The adjacent property owners sued.  The property owners and CE filed cross motions for summary judgment.

Trial Court

The trial court held in favor of the property owners (the plaintiffs) finding that to succeed on a claim of implied easement the property owners needed to show:

  1. “that [they] purchased [their] lot[s] according to a recorded subdivision plat which had the golf course area designated on it and that [they] paid more for [their] golf course lot[s];” or
  2. that “developers made oral assurances or representations that the golf course would remain on the property and that [they] relied upon those assurances in deciding to purchase [their] lot[s].”

In granting judgment to the property owners, the court found that both conditions had been met because the golf course “was set apart for the plaintiffs’ use and the plaintiffs paid site premiums in connection with the purchases of their lots” and because the developer “made oral assurances or representations to the plaintiffs that the [golf] course would be used as a golf course.” The trial court also awarded the property owners’ attorney fees.  An appeal followed.

Appellate Court

On appeal, CE argued that:

  1. “the trial court erred in determining that the plaintiffs acquired an implied easement in the golf course;
  2. the trial court’s order is too vague to be enforceable; and
  3. the trial court erred in awarding attorney fees to the plaintiffs.”

After carefully analyzing the law relating to implied easements, the appellate court affirmed the first two decisions (the golf course had to stay), but wiped out plaintiff’s award of attorney fees on the ground that there was no record that the trial court provided notice to the defendant that the award of attorney fees would be considered, as required by the applicable statute.

  1. You can prohibit a neighboring property owner from changing the use of its property under the right circumstances.
  2. Read the title report and any possible encumbrances on title so that when you buy you get what you think you are getting.
  3. If there is a statute that entitles you to attorney fees, do all you can to comply with the requirements, since in litigation those fees tend to be significant and losing an award of attorney fees because you failed to follow the statute can be very expensive.
  4. Court’s will tend to support consumer claims where representations were made that later prove to be untrue, as long as there is sufficient evidence to support a viable claim.

WS CE Resort Owner, LLC v. Holland, 860 S.E.2d 637, 360 Ga.App. 720 (2021)


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