Justia.com Opinion Summary: 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.
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SUPREME COURT OF GEORGIA
Atlanta
July 8, 2011
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
It appearing that the enclosed opinion decides a second-term appeal, which
must be concluded by the end of the April term on July 31, 2011, it is ordered that a
motion for reconsideration, if any, must be received in the Clerk’s Office by 4:30
p.m. on Monday, July 18, 2011, including any motions submitted via the Court’s
electronic filing system.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I hereby certify that the above is a true extract from
the minutes of the Supreme Court of Georgia
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
In the Supreme Court of Georgia
Decided: July 8, 2011
S11A0559. CAMPBELL et al. v. LANDINGS ASSOCIATION, INC.
MELTON, Justice
On March 24, 1995, Frederick and Barbara Campbell (the “Campbells”)
purchased a home in a community known as The Landings on Skidway Island
(“Skidway Island Community”) in Savannah, Georgia. In October 2007, The
Landings Association, Inc. (“Landings”), the non-profit corporation that serves
as the homeowners association for the Skidway Island Community, sued the
Campbells, claiming that the Campbells did not own a strip of land which lies
between the Campbells’ eastern boundary line of their property and the
marshlands that lie further to the east of their property. Landings claimed that
the property in question was common property owned by Landings, and that the
Campbells did not have the right to build a gazebo on this property or otherwise
alter this property. Landings moved for summary judgment, which the trial court
granted in part, finding that the property at issue was owned by Landings, in that
it had been transferred by deed from The Branigar Organization (the entity that
had previously owned the property in question) to Landings on November 28,
2000, and finding that the Campbells did not gain title to the property in
question by prescription. The Campbells appeal from this ruling, and, for the
reasons that follow, we affirm.
“On appeal from the grant of summary judgment this Court conducts a de
novo review of the evidence to determine whether there is a genuine issue of
material fact and whether the undisputed facts, viewed in the light most
favorable to the nonmoving party, warrant judgment as a matter of law.”
(Citations omitted.) Home Builders Assn. of Savannah v. Chatham County, 276
Ga. 243, 245 (1) (577 SE2d 564) (2003); OCGA § 9-11-56.
1. The Campbells contend that the trial court erred in finding that the
disputed property is titled in the name of Landings.
Viewed in the light most favorable to the Campbells, the record reveals
that, on May 1, 1972, the property in question was transferred by recorded deed
from Union Camp Corporation (“Union Camp”) to The Branigar Organization
(“Branigar”) as part of the conveyance of a larger tract of land. Specifically, the
land conveyed by Union Camp included the lot that the Campbells would
eventually own, and also included the disputed strip of land between the
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Campbells’ eastern boundary line of their property and the marshlands that lie
further to the east. The conveyed land was identifiable on a recorded plat, and
uncontested expert testimony established that the disputed land was part of the
conveyance. The disputed property is also identified in Plat Number 19,
recorded in the Office of the Clerk of the Superior Court of Chatham County in
Plat Book M, Folio 6, as the “Lands of Branigar.” It is further undisputed that
Plat Number 19, which identifies the “Lands of Branigar,” is expressly
referenced and incorporated into the Campbells’ deed with regard to the legal
description of the boundaries of their own property.
On November 28, 2000, Branigar conveyed to Landings by recorded deed
certain lands in the Skidway Island Community, and conveyed
all right, title, and interest of Branigar, if any, in and to (i) tracts or
parcels which are between the extensions of platted lot lines and
contiguous marshlands adjoining or abutting highlands within said
subdivision, and (ii) marshlands adjoining or abutting highlands or
platted subdivision lots within said subdivision.
Besides the description given in the deed, uncontested expert testimony from a
land surveyor also established that the property conveyed by Branigar in this
deed included the “Lands of Branigar” referenced on Plat 19.
Because the undisputed evidence reveals that Landings gained title to the
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disputed property through a proper conveyance from Branigar in November
2000, and that the land in question is not owned by any other entity, the trial
court properly granted summary judgment to Landings on its claim of holding
the valid title to this property. See, e.g., Simmons v. Community Renewal &
Redemption, LLC, 286 Ga. 6 (685 SE2d 75) (2009) (landowner defending
against plaintiff’s quiet title action entitled to summary judgment where
undisputed evidence revealed that landowner held fee simple title to disputed lot
pursuant to quitclaim deed from prior owner).
2. The Campbells’ claim that Landings did not own the disputed property
as a common area is also without merit, as the undisputed evidence of record
reveals that the 1972 Declaration of Covenants for the Skidway Island
Community specifically authorized Branigar to “convey to [Landings] as
common property any. . . properties owned by [Branigar] located within or
abutting upon the existing properties and any additions thereto. . . at any time
[after the 1972 Covenants took effect].” Contrary to the Campbells’ contentions,
there was no deadline by which these common areas had to be conveyed in order
for the conveyances to be valid.
3. Finally, the Campbells claim that the trial court erred in determining
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that, as a matter of law, they were unable to establish a claim for prescriptive
title in relation to the disputed strip of land.
Pursuant to OCGA § 44-5-161,
[i]n order for possession to be the foundation of prescriptive title,
it: (1) Must be in the right of the possessor and not of another; (2)
Must not have originated in [actual] fraud . . .; (3) Must be public,
continuous, exclusive, uninterrupted, and peaceable; and (4) Must
be accompanied by a claim of right. . . . Permissive possession
cannot be the foundation of a prescription until an adverse claim
and actual notice to the other party.
Here, as there is no claim that the Campbells can show prescriptive title by
adverse possession for seven years under color of title,1 they were required to
show evidence of adverse possession for twenty years in order to support their
claim. See, e.g., Atlanta Trailer Mart v. Ashmore Foods, 247 Ga. 254 (275 SE2d
336) (1981). See also OCGA § 44-5-163.
The record conclusively reveals that, at most, Landings permitted the
Campbells and all other Skidway Island Community residents to enjoy the
“Color of title is ‘a writing upon its face professing to pass title, but
which does not do it, either from want of title in the person making it, or
from the defective conveyance that is used.” (Citation and punctuation
omitted.) Capers v. Camp, 244 Ga. 7, 11 (3) (257 S.E.2d 517) (1979). See
also OCGA § 44-5-164.
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property in question as common property. Landings has never permitted the
Campbells to take over the common property for their own personal use. The
Campbells have not shown that their use of the property has been “continuous,
exclusive, uninterrupted, and peaceable” for the past twenty years, because they
purchased their lot within the past sixteen years, and because Landings has
consistently impeded all of the Campbells’ attempts to do their own personal
construction projects on the disputed property. Nor can the Campbells establish
that the alleged installation of a sprinkler system on the disputed property by a
prior owner of their property somehow bolsters their claim of adverse
possession,2 as there is no evidence as to how long any previous owner allegedly
maintained adverse possession of the disputed property, and the installation of
a sprinkler system, by itself, would not establish adverse possession under the
circumstances presented in this case. See OCGA § 44-5-165 (“Actual possession
of lands may be evidenced by enclosure, cultivation, or any use and occupation
of the lands which is so notorious as to attract the attention of every adverse
See OCGA § § 44-5-172 (“An inchoate prescriptive title may be
transferred by a person in possession to his successor so that successive
possessions may be tacked to make out the prescription”).
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claimant and so exclusive as to prevent actual occupation by another”)
(emphasis supplied).
The trial court did not err in finding that the Campbells’ claim for
prescriptive title fails as a matter of law.
Judgment affirmed. All the Justices concur.
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