2020 Georgia Code
Title 44 - Property
Chapter 6 - Estates
Article 3 - Estates Granted Upon Conditions
§ 44-6-43. Certain Conditions Void

Conditions which are repugnant to the estate granted, which require impossible or illegal acts to be performed, or which in themselves are contrary to the policy of the law are void.

(Orig. Code 1863, § 2277; Code 1868, § 2270; Code 1873, § 2296; Code 1882, § 2296; Civil Code 1895, § 3138; Civil Code 1910, § 3718; Code 1933, § 85-903.)

- For annual survey of wills, trusts, and administration, see 43 Mercer L. Rev. 457 (1991). For summary review article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For comment criticizing Williams v. S.M. High Co., 200 Ga. 230, 36 S.E.2d 667 (1946), holding perpetual right of renewal in lease granted to corporation did not violate rule against perpetuities, see 8 Ga. B.J. 420 (1946). For comment on Jenkins v. Shuften, 206 Ga. 315, 57 S.E.2d 283 (1950), see 12 Ga. B.J. 477 (1950). For comment, "Injunction Remedy for Breach of Restrictive Covenants: An Economic Analysis," see 45 Mercer L. Rev. 543 (1993).

ANALYSIS

• General Consideration
• Conditions Void
• Conditions Not Void

General Consideration

Right to dispose of land incident to fee simple estate.

- An estate in fee simple carries with it as a natural incident the right to sell or otherwise dispose of the land conveyed. Alderman v. Crenshaw, 84 Ga. App. 344, 66 S.E.2d 265 (1951).

Repugnant conditions are those which tend to the utter subversion of the estate, such as those that prohibit entirely the alienation or use of the property. Conditions which prohibit the property's alienation to particular persons or for a limited period, or the property's subjection to particular uses, are not subversive of the estate; those conditions do not destroy or limit the property's alienable or inheritable character. Floyd v. Hoover, 141 Ga. App. 588, 234 S.E.2d 89 (1977).

Cited in Lassiter v. Bank of Dawson, 191 Ga. 208, 11 S.E.2d 910 (1940); Wright v. Pritchett, 213 Ga. 865, 102 S.E.2d 602 (1958); Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969); DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985); Phillips v. Phillips, 260 Ga. 265, 392 S.E.2d 523 (1990).

Conditions Void

Restriction on power of alienation of fee void.

- Statute declares that a condition repugnant to the estate granted is void. It requires no argument to support the proposition that a restriction on the power of alienation is repugnant to a grant in fee. Freeman v. Phillips, 113 Ga. 589, 38 S.E. 943 (1901) (see O.C.G.A. § 44-6-43).

Power of alienation is necessarily incident to every estate in fee, and a condition in a devise of lands in fee simple altogether preventing alienation is repugnant to the estate and void. Crumpler v. Barfield & Wilson Co., 114 Ga. 570, 40 S.E. 808 (1902).

Restraint upon alienation being repugnant to the nature of a fee simple estate is void. Cowart v. Singletary, 140 Ga. 435, 79 S.E. 196, 47 L.R.A. (n.s.) 621, 1915A Ann. Cas. 1116 (1913).

Devise in fee with an inhibition against alienation is repugnant to the fee, and is therefore void. Farkas v. Farkas, 200 Ga. 886, 38 S.E.2d 924 (1946).

It has always been the rule in Georgia that a restriction in a deed inhibiting alienation is void. This rule applies to a restriction in a deed inhibiting alienation without the consent of the grantor, and this is true even though the grantor is a tenant in common. Alderman v. Crenshaw, 84 Ga. App. 344, 66 S.E.2d 265 (1951).

Provision in a deed or will that a fee simple estate may not be sold is void as being repugnant to the estate granted. Wills v. Pierce, 208 Ga. 417, 67 S.E.2d 239 (1951).

Power of alienation is necessarily incident to every estate in fee simple absolute, and no one can create what is intended in law to be a fee simple absolute and at the same time deprive the owner of those rights and privileges which the law attaches to that estate. Such a condition is inconsistent with the fee, repugnant to the estate granted, and is void. Floyd v. Hoover, 141 Ga. App. 588, 234 S.E.2d 89 (1977).

Will provision which allowed the decedent's sons to build a house on bequeathed real estate did not grant the sons an easement in gross as to the property because such a grant would have been repugnant to the fee simple interest in the property granted to one son, and the lack of any limitation as to time, place, or manner would have impermissibly restricted the property's alienability. Dyer v. Dyer, 275 Ga. 339, 566 S.E.2d 665 (2002).

Grantor could not create a fee simple estate in certain property and simultaneously prohibit entirely the alienation or use of the property, despite grantor's intention on creating a fee simple subject to a condition subsequent. Statham v. Kelly, 276 Ga. 877, 584 S.E.2d 246 (2003).

Will gave the decedent's spouse a fee simple estate in the decedent's undivided half-interest in certain realty. As the will attempted to bar the spouse's sale of the property without the approval of the executor, this was a restraint on the alienation of a fee simple estate, and therefore void under O.C.G.A. § 44-6-43. Bandy v. Henderson, 284 Ga. 692, 670 S.E.2d 792 (2008).

- First part of a deed clearly conveys the title and the present estate in the land to the grantee and the attempt by the grantor in a subsequent part of the deed to retain the title in the grantor is inconsistent with the first part of the deed, wherein the grantor had already conveyed the title out of the grantor, and the former must prevail. If the habendum be repugnant to the premises, it is void, for a condition repugnant to the estate granted is void. White v. Hopkins, 80 Ga. 154, 4 S.E. 863 (1887).

- If any of the provisions granting broad powers to the trustee should be construed as retaining an interest in the grantor, such provisions would be void as repugnant to the grant. Lewman v. Owens, 132 Ga. 484, 64 S.E. 544 (1909); Galland v. Reuben, 155 Ga. 293, 116 S.E. 302 (1923).

Conditions Not Void

Incumbrance upon property requested by grantor and grantee not repugnant to grant.

- When a husband settled property on his wife free from all his liabilities except such incumbrances as the two together shall request the trustee to make, the exception is not repugnant to the grant, but is merely a qualification thereof. Aetna Ins. Co. v. Brodinax, 48 F. 892 (C.C.S.D. Ga. 1883), aff'd, 128 U.S. 236, 9 S. Ct. 61, 32 L. Ed. 445 (1888).

Spendthrift trusts are allowed by statute, but only in certain defined cases under former Civil Code 1910, § 3729. Wright v. Hill, 140 Ga. 554, 79 S.E. 546 (1913).

- Provision that should the wife's sister die childless before the wife is not inconsistent with the grant to the wife of a fee determinable upon condition. If the devisee in remainder under such condition should die without child or children, the wife would have the added right of disposition. Tyler v. Theilig, 124 Ga. 204, 52 S.E. 606 (1905).

- Devise of land in fee with a condition subsequent inhibiting alienation to the wife of the devisee or her children directly, or indirectly as by "any legal proceedings or order of court," as the restriction against alienation was limited to one person and her children and did not extend generally to all persons, was valid as against the objection that it was repugnant to the estate devised. Nor was it void on the ground that it was repugnant to the nature of the estate granted, contrary to law, contrary to public policy, or prevented performance of parental duties. Blevins v. Pittman, 189 Ga. 789, 7 S.E.2d 662 (1940).

Testator has right to place executory limitation upon estate devised by testator's will; this is not such a condition repugnant to the estate granted as is prohibited by this statute. McDonald v. Suarez, 212 Ga. 360, 93 S.E.2d 16 (1956) (see O.C.G.A. § 44-6-43).

- Residuary clause of a will devising all the residue of the testator's real and personal property to his wife free from all charge and limitation, with the provision that should she not dispose of the same in her lifetime it would pass in fee simple to the testator's brothers and sisters, created and vested in the testator's widow a defeasible fee subject to an executory limitation, which does not offend the provisions of this statute. Jenkins v. Shuften, 206 Ga. 315, 57 S.E.2d 283 (1950), for comment, see 12 Ga. B.J. 477 (1950) (see O.C.G.A. § 44-6-43).

Under the provisions of a will, the plaintiff had an estate in fee of a one-half undivided interest in the property, subject to being divested by her dying before the defendant, in which event the defendant, as the survivor, would become vested with the fee simple title to the entire interest. The provisions as to the use and sale of the property during the lifetime of the devisees did not create a trust estate, nor did the limitation placed on the sale of the property during the lifetime of the devisees violate this statute. Trimble v. Fairbanks, 209 Ga. 741, 76 S.E.2d 16 (1953) (see O.C.G.A. § 44-6-43).

- Devise of the life interest to the wife was not such a grant of an estate to her as to make the subsequent provision against its transfer void on account of repugnancy. Trammell v. Johnston, 54 Ga. 340 (1875).

Inhibition against selling a life estate is valid when the creation of the life estate is accompanied by an estate over in remainder to another, with a provision for a forfeiture of the life estate in favor of the remainderman, to take effect upon the prohibited attempted alienation. Farkas v. Farkas, 200 Ga. 886, 38 S.E.2d 924 (1946).

- Restrictive covenant preventing "For Sale" signs in a subdivision was not an unenforceable restraint on alienation under O.C.G.A. § 44-6-3. The covenant did not directly prohibit the sale of a homeowner's residence. Godley Park Homeowners Ass'n v. Bowen, 286 Ga. App. 21, 649 S.E.2d 308 (2007).

- Condominium occupancy limitation restricting permanent residence to persons 16 years old or older is not so unusual or so unreasonable as to be repugnant to the estate granted. Hill v. Fontaine Condominium Ass'n, 255 Ga. 24, 334 S.E.2d 690 (1985).

- Trial court's grant of summary judgment to the homeowners' association was proper because two-thirds of homeowners voted to restrict leasing in their neighborhood; thus, an amendment to the declaration challenged by the plaintiff complied with O.C.G.A. § 44-3-226(a) and the plaintiff did not have an unfettered right to lease the plaintiff's property thereafter. Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433, 829 S.E.2d 618 (2019).