Agenda - Planning Commission - 01/04/2007

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Page 2 - December 24,2006 Z.B. Easement - Seller claims flood easement like simple zoning regulation Buyer claims it's much more than that Citation: McMurray v. Housworth, Court of Appeals of Georgia, 4th Div., No. A06A1603 (2006) GEORGIA (11/06/06) - McMurray bought property from Housworth near a lake created by a dam. Housworth planned on building a single;...family resi- dence. However, McMurray failed to discover that recorded in the chain of title was a "floodwater retarding structure" easement that had been granted to the soil conservation district. The easement allowed construction, operation, and maintenan(je of a flood- water retention structure and storage of floodwater on the.. property. It also allowed access to the property. McMurray sued, arguing he was not informed of the encumbrance .on the property's usage, and Housworth had thus breached a general warranty of title. The court ruled in Housworth's favor. The court found the floodwater ease- ment was similar to a zoning regulation, which was not the type of easement that c;ould breach a general warranty of title. McMurray appealed, arguing the floodwater detention easement was more than a mere zoning regulation. DECISION: Reversed. The floodwater detention easement did not function in the same manner as a zoning regulation. The floodwater detention easement did more than impose zoning-typ,e re- strictions on development activities on the property. It granted the county soil and water consideration district rights for the storage and retention of im- pounded waters on the property. It also. granted the district a right of ingress and egress upon the property. Easement rights such as these constituted an interest in propetty that had to be acquired either by agreement of the property own~r or by con- demnation. Importantly, th~ easement prohibited building a residence or dthtrr improve- ments in the area of the easement to the extent it would substantially interfere with the rights of the property owner. . Ultimately, although the easement did duplicate some zoning-type regula- tions, the easement imposed additional restriction~ that damaged the owners. see also: Adams v. Belote, 588 S.E.2d 827 (2003). see also: Myers v. Funderburk, 564 S.E.2d 27 (2002). Visit our website at www.quinlan.com @2006 West, a Thomson business. Quinlan 1M is a Thomson West brand. Any reproductlofl is prohibited. 150 (.... ( '-