Articles Posted in PROPERTY AND TITLE LITIGATION & DISPUTES

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As a Atlanta lawyer, I realize the importance of new Atlanta construction arbitration and its binding effect. The legal forum for resolving Georgia new construction disputes is usually binding arbitration and triggered by a clause in the “New Construction Dispute Resolution Section” in the “Home Purchase Agreement”. In most cases, the arbitration ruling is final. This means there is no chance to challenge the arbitration ruling, such as an appeal. In short, new home construction arbitration in Georgia is final. Should you disagree with the arbitrator’s award or judgment in your case, you are stuck with their ruling – and, no legal recourse. In your new home construction arbitration case, I know the importance and necessity of having affordable, zealous, and aggressive legal representation leading the way.

As an Atlanta construction law attorney, I have successfully represented countless clients in Georgia home construction defect arbitration cases. I have also represented countless clients in Georgia home construction defect negotiations. What is more, I have successfully brought contractors, builders, sub-contractors, and architects who are at fault, “to the table”, forced them to take responsibility and for their defective construction or design and pay damages, forced them to correct the defects at no charge to the home buyer, or both. It therefore stands that I know what you must look for in choosing a lawyer to represent you in a Georgia construction dispute. This is especially true if your dispute is to be decided through binding arbitration. Regardless, you must decide when it is the right time to seek the assistance of a Georgia construction attorney.

I would presume you found this article because you believe you have a construction defect in your home or other structure, which was caused by or through the negligence, malfeasance, or fraud of your contractor, builder, sub-Contractor, or architect. You will be glad to know, your search has landed you in the right place. The order of events in discovering and addressing a construction defect in your new home are as follows:

• You have found what you believe to be a construction defect


• You have tried to get the contractor to correct what you believe to be a defect, but you can’t get your contractor to correct the problem, or your problem gets the proverbial “band aid” placed on it

• You realize this is your house, it’s probably the biggest purchase you’ll ever make, you will call this place home, and your sixth sense tells you this is not a situation to take lightly and you should see a professional, such as a Georgia Construction Defect Law Attorney!

When you have verified that something is wrong with your home, and that the contractor, builder, sub-contractor, architect, etc. are not going to assist you in addressing or correcting the situation, it’s time to move on to more assertive behavior to protect your asset, as follows:

• Notify the contractor that there is a problem and give him one last chance

• Verify through a third party expert that the problem you believe is a home defect is the type of defect the contractor, builder, sub-contractor or architect should be responsible for, and should correct

• Verify through a third party inspector, expert, or other such person privy to the costs of correcting construction defects, and determine that the costs involved in hiring an attorney are justified. Make sure you consider the total affect the defect will have on you such as diminution in value, future sale value, the problem becoming worse over time, etc.


Now, you have properly identified and noted a construction defect for which the contractor, builder, sub-contractor or architect should be responsible, but will not correct. You have double-checked your findings through a third-party, and you have calculated that the problem is significant monetary issue to seek the assistance of a professional. Now it’s time to seek out your Georgia construction defect attorney to assist you.
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Construction defects can be costly to rectify and can negatively affect the value of a home and the ability to resell it (this is often called a diminution in value). Some of the more serious and difficult to fix issues stem from a defective home foundation. A home’s foundation can withstand hundreds of years of use if correctly constructed and usually can outlast the home built on top of it. However, if built poorly, a foundation can be the source of problems that threaten the stability of the home and, ultimately, the homeowner’s investment.

It is sad to know, that whether I am working in Sandy Springs as a “Sandy Springs Construction Home Defect Attorney,” the Buckhead Area as a “Buckhead Construction Home Defect Attorney,” in Fulton County as an Atlanta Construction Home Defect Attorney, in Gwinnett County as a Duluth or Lawrenceville Construction Home Defect Attorney, in Forsyth County as a Cumming Construction Home Defect Attorney, in Cobb County as an Acworth, Kennesaw or Marietta Construction Home Defect Attorney, and/or last but not least, in DeKalb County as a Decatur Construction Home Defect Attorney, the critical foundation problems I see in my Atlanta-Based Home Construction Defect Law Practice all stem from common defective construction that could have been prevented had the builder, contractor, or sub-contractor taken care in the construction of the home, and in particular, the foundation.

Unfortunately, these issues may not become known until several years after the building is complete. The result can be a nightmare scenario that leaves the homeowner unsure of what recourse is available under Georgia law. In many cases, by the time the defect is noticed, the builder or contractor responsible for the poor work usually denies that the foundation defects are their responsibility. For this reason, we also may engage various insurance companies to seek a remedy and relief for the homeowner in addition to pursuing the builder and contractor.

The foundation is especially critical because not only does it support the house, it also provides a moisture barrier that keeps the home dry and mold free. A solid foundation also insulates the home from cold and protects the home from damage caused by the ground shifting. Poured concrete reinforced by steel is thought by some experts to be a stronger material for foundations than concrete block or stone, and foundations can be built below ground on footings to provide a basement, or built as a slab. Regardless of the materials used to build the foundation, or its type of construction, all foundation types can fail for a variety of common reasons.

Improper initial site evaluation by the builder is one common cause of foundation issues. The first thing a builder must do when planning new construction is to evaluate the property’s soil type, water table, and grade. This will allow the builder to determine where to place the home on the property and what materials to use. Once that decision has been made, the soil preparation, process of laying the concrete and backfill used around the foundation all will affect the integrity of the foundation.

The foundation must be poured over solid ground that is prepared correctly, and compacted, so it does not settle and cause the foundation to crack. Properly leveling and packing crushed stone before pouring a slab, for example, will help prevent the slab from cracking. If the property contains any landfill material that may decompose over time, the soil must be reengineered to withstand the force of the foundation and the building. Additionally, concrete should be poured in one day to avoid creating a “cold joint” between fresh and semi-cured or cured concrete. This condition usually results in a cracked foundation that will leak. Concrete must also be allowed to cure slowly. Only by curing slowly will the concrete reach a strength that will support the weight of the house (around 3,000 pounds per square inch). Finally, the material used to backfill around the foundation will affect the longevity of the structure. Soils with a high clay or organic content absorb and hold water and can cause cracks in the foundation during freeze/thaw cycles when used as backfill.
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As an Atlanta property lawyer that regularly handles proceedings dealing with Georgia business, real estate, construction, property, and contract matters, it is imperative that I know when a Georgia contract must be in writing to be legally enforceable. Being an attorney who does not cut corners and can be stubborn about achieving perfection, my quick answer is that every contract must be in writing. However, this is not true. Many contracts are not in writing. This is especially true for Georgia contract disputes and litigation, which in one way or another; end up on my desk to correct. In short, failure to memorialize your contractual agreement causes a plethora of problems, so please put everything in writing.

This is even true if you write your contractual agreement on a napkin from the restaurant, while having lunch with the contracting parties, with the waiter’s pen. The written contract should be a detailed written agreement that is signed, witnessed, and understood by all parties of the contract. Do not sign a contract you do not understand. This is because your signature on a contract affirms that you read, understood the contract fully, and agreed to it. The contract must contain and cover all material terms of the subject matter contract.

Now, the truth be known, the above-referenced scenario, while not a bad idea, is really me making a vain attempt to prevent future problems that could arise stem from uncertainties that often arise from oral contracts, and which are oftentimes prevented by written contract – even if it is on a restaurant napkin. Now it is time for the truth. I must admit I am purposefully wrong to prove a point. Georgia law holds that only certain Georgia contracts must be in writing. I still want to get one last word in that a contract on a restaurant napkin is abundantly better than an oral agreement.

In my Atlanta based property and Georgia real estate transaction and property dispute and litigation law firm, I know that contracts must legally only be in writing when they are subject to the Statute of Frauds. O.C.G.A. § 13-5-31 states that the following contracts do not have to be in writing to be legally enforceable. In short, they are not subject to the Statute of Frauds, which requires them to be in writing.

Conversely, it follows that contracts must be in writing when they are subject to the Statute of Frauds. In my Atlanta property dispute and litigation law firm, I know the exceptions to the Statute of Frauds. To be clear, contracts that must be in writing must meet the requirement that they be in writing because the Statute of Frauds dictates so.


Under O.C.G.A. § 13-5-31, the following types of cases are do not have to be in writing and thus one could say, they are not subject to the Statute of Frauds to be enforceable.

They are as follows:


• There has been performance concerning the contract terms by a party to the contract, and another party to the contract has accepted this performance. This indicates there is a contract, thus Georgia law states there is.

• Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.

• The contract has been fully performed. Since the contract has begun and finished, there is no reason to back up in time and require this contractual agreement be in writing.

As such, any oral contract is valid and legal enforceable so long as it complies with one of the above exceptions to the Statute of Frauds.

The binding authority that set forth and solidified the Statute of Frauds can be found in the case of Atlantis Realty Co., Inc. v. Morris, 142 Ga. App. 470, 236 S.E.2d 163, (Ga. Ct. App. 1977).

The lesson of this Blog Article? While it is possibly not evident, is that parties should always take the time to make a contract. Even more so, that certain contracts need not be in writing to be legally enforceable. However, if you are party to a contract, please take the time to put it in writing. If you feel a contract is pending, please take the necessary steps to have this contract put in writing. Truth be known, putting the contract in writing is only half the battle. If you are engaging in business with another party, please retain an experienced Atlanta, Georgia contract attorney to draft your contracts and make them binding on all parties. Additionally, by having your attorney draft the contracts, you can make sure your best interest are protected and promoted. I stated earlier that much litigation is generated from disputes over oral contracts. Well, there is a whole other sector that deals with Georgia contract disputes over poorly, ambiguously, or improperly drafted Georgia contracts. While a contract is just an agreement, in this business environment, a “handshake will not do anymore.” It is sad, but true.

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As a Georgia property title lawyer, I know that under Georgia law property title law, individuals that do not hold legal title to land may take ownership of land legally under several scenarios. For many non-lawyers, this is hard to understand or believe. Georgia property owners need to be made aware of these types of situations in order to protect their right of ownership. Georgia law offers a number of ways that real property ownership can be transferred. Under Georgia law, adverse possession, prescriptive title, and color of title, are commonly referred to as “squatters rights.” Georgia law states that an individual who occupies a piece of land, but who is not the legal holder of the title, may gain ownership under certain circumstances after 20 years, or under “color of title” after 7 years. Under Georgia law, “Color of title” is evidence that the individual has a legal claim to property, although that claim has a defect. Examples are when the individual claiming ownership has a deed, but the deed is deficient or when two individuals hold deeds to the property simultaneously.

Despite what the statute of limitations is (7 or 20 years), the individual occupying the property usually must truly occupy the property continuously for the specified period of time. One possible exception to this rule is referred to as “Tacking.” The individual must also occupy the land in an open manner (not hidden from the real owner) and the individual must be using the property exclusively. Common scenarios are the use of a pathway between houses that the “squatter” has improved with a brick-paver pathway. If the real titleholder did not contest the use and improvement of this piece of land, because that owner never realized that the property fell within his property line, then the individual who made the improvements and used the pathway could take possession under the law. Another example is if a church allowed a parishioner to occupy a vacant home on church property, free of rent for over 20 years. That individual could file for adverse possession and attempt to take legal possession of the property.

In both these cases, regardless of the statute of limitations, the individuals laying claim to the land would have to have used the land continuously for the specified period. Because the individual occupying the property must do so without hiding their intention, most landowners do not realize that a problem exists and that the individual is squatting on the land. The issue usually arises when it is time to sell the property and the title is being checked. Unfortunately by this time, it is possible that the 7 or 20-year statute of limitations has run out and the land could be transferred to the squatter legally. For this reason it is imperative that boundary lines are checked when any property is purchased. Also, for vacant land, it is important to have the property checked periodically to move off any squatters. A qualified Atlanta, Georgia Real Estate lawyer can work to provide protection from these types of situations.
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As an Atlanta, Georgia real estate litigation lawyer, I often work with clients to ensure that title disputes do not inhibit the sale of property. This two part series outlines several ways to resolve title disputes, including Quiet Title Actions. In this segment, I discuss how you can “quiet a title” without going to court, the circumstances under which you might need a Quiet Title Action to clear a title, and the two types of Quiet Title Actions in Georgia.

If the source of the problem with a title is already known, as might be evident in a case with a hostile partner who you know has no real interest in the land itself, you can opt to obtain a quitclaim deed from that person and put that on title. This will allow you to clear the title without going to court with a Quiet Title Action. But often the source of a dispute is not apparent and legal action with a Quiet Title Action is necessary. Disputes over titles can arise from tax sales, mechanics’ and materialmen’s liens, historical mechanics’ liens, issues of hostile ownership, boundary disputes, federal or state tax liens and disputes with a spouse or business partner (former or current). Adverse possession or prescription of title also cloud titles when an individual claims to have held the property for a long period of time without documentation or when, under Color of Title, that individual possesses a defective document that appears to show ownership.

Most of the issues listed above can be resolved using a Quiet Title Action, with the exception of federal or state tax liens and disputes involving a spouse. Federal and state tax liens must be addressed by another court and disputes involving a spouse fall under the domestic relations statutes in Georgia. When a Quiet Title Action is necessary, it is wise to seek the assistance of an experienced Atlanta, Georgia real estate lawyer. Your lawyer will choose from the two methods available to “quiet a title.” Both types fall under the Equity Code in Georgia (Chapter 23). The first is the Conventional Quiet Title Action that removes a known instrument or known instruments (Chapter 23-3-40). This method is not very common, but it is useful when you know exactly what is clouding the title and who is behind it. With this type of case you do not need to serve everyone with the petition, since you already know what and who is at the root of the issue.

Much more usual is use of the Quiet Title Act of 1966 (Georgia Equity Code Chapter 23-3-60 through 23-3-73). This method clears all known clouds on titles and as such, requires that the whole world be served with the petition. Because everyone is served, all disputes can be aired and resolved. This allows the title insurance company to insure the title, so that the seller can pass the property on to the purchaser with what is called “good and marketable title”. Because this form of Quiet Title Action clears any and all disputes on the title, it is an effective way to guarantee that a title is free and clear.

Keep an eye out for my next installment of this series on resolving Georgia title disputes. I will examine the general guidelines that need to be followed if you do go to court with a Quiet Title Action and take a look at a typical timeline for these cases.
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In the previous segment on resolving title disputes with Quiet Title Actions, I discussed what Quiet Title Actions are used for, in what types of title disputes they can be effective and the two types of Quiet Title Action lawsuits. In this installment I will explain where the case is tried and the general guidelines that need to be followed when going to court with a Quiet Title Action. We will also take a look at a typical timeline for Quiet Title Action cases.

Georgia’s Equity Code provides that a Quiet Title Action may only be filed in the county where the land in question is located. Because Georgia has 159 counties, it is critical to be specific about where the land is located and in what county the claim is filed. In Georgia, the highest plenary court in any county is the Superior Court, so these lawsuits must be filed in the Superior Court of the county where the land is located. When filing a petition it is required that you state specifically what land you are suing to remove the clouds from and the suit must be signed and verified by you, the petitioner (as a petition in equity, the petitioner must swear to the facts). If you are filing under the Quiet Title Act of 1966, you must petition to remove all disputes, or clouds to title. Also, you must file a recent plat of the land, a copy of a recent survey of the land and a copy of the immediate deed or interest of the petitioner (this is the document that indicates that the petitioner is the true owner of the land). Once the petition is filed, a notice to “the whole world” must be filed at the land records office stating that there is a lawsuit pending regarding the land and that anyone that takes the land by deed or transfer, takes it subject to the lawsuit under lis pendens.

When the lawsuit is filed, the Superior Court judge of the county will assign the case to a lawyer, called a Special Master. From this point on the Superior Court judge typically has limited involvement. The Special Master is a lawyer that resides in the judicial circuit or county where the Superior Court is located and who has experience in real estate law. The Special Master is charged with examining the title. He does this by holding a hearing, and sometimes a trial, and by reviewing the petition to see that everything has been filed appropriately. He will also ensure that everyone that was required to be served the petition was served. It is important to note that all neighboring landowners will be served, so that they have an opportunity to bring up any outstanding disputes, such as boundary issues. Everyone served has 30 days to respond to the claim.

Then, just like any other trial, the case goes into an evidentiary phase during which there may be requests for documentation, depositions, physical inspections of the land, subpoenas and any other action that is allowed in Superior Court. As the petitioner, you may do anything you want to acquire evidence to prove your case. You must have proof of ownership, though, as it is not enough to just disprove someone else’s claim to the land. Failure to show proof of ownership is grounds for dismissal of the lawsuit. Once the evidence is gathered, the Special Master will review everything and send a written report to the Superior Court judge. The Superior Court judge will then make a determination of the title. Most times the judge will make this ruling based on the Special Master’s report, but in rare cases the judge might ignore the Special Master’s report and require that a trial be held or that evidence be reviewed. Usually though, the Superior Court judge accepts the Special Master’s report, processes an order which decrees the title to the land (eliminating clouds to title) and files the order with the court clerk.

Once the judge files the order with the clerk, the title is considered “good and marketable” in Georgia, although technically at this point there is a 30-day waiting period to allow for all final appeals to run out. This appeal period allows for anyone in the world, who did not have notice of the case, to come forward and file an appeal. To be recognized however, anyone stepping forward during this appeal period has to prove that they did not originally receive notice of the Quiet Title Action lawsuit. When the 30-day period ends the judgment is considered final, and once this occurs it is very difficult to reopen the claim. All title companies in Georgia will issue a “good and marketable” title at this point when the appeal period is over and the judgment becomes final and non-appealable.
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