Real Estate

Published on: June 15, 2020

Seeking and Obtaining Specific Performance to Get the Benefit of Your Georgia Real Estate Contract

In most cases, a party initiates a civil lawsuit because it has been harmed and it seeks an award of money damages to compensate it for the harm it suffered. Sometimes, though, the type of harm that is caused by a breach of a contract cannot be corrected through an award of money damages, regardless of the amount. When that is the case, such as in disputes over parcels of real estate, the injured party may seek other remedies, like a court order demanding that the other party complete the performance promised in the contract. This is called specific performance, and it can be difficult to obtain unless your case meets a exact set of criteria. If you have been harmed by another party’s breach of a real estate contract, make sure you have skilled Atlanta real estate attorneys on your side to protect your interests.

One example of a specific performance case was a litigation action recently decided by the Court of Appeals. In the summer of 2016, a man named Rahmat entered into a contractual agreement to purchase a shopping mall plaza from a family limited partnership. The buyer paid earnest money and also paid for an environmental assessment. Furthermore, the buyer allegedly put up more than $450,000 of the property’s $525,000 sale price. After the two sides held a meeting to talk about “expenses related to the ownership and management of the property,” the seller abruptly canceled the contract.

The buyer sued for specific performance. Specific performance, if awarded by a court, means that a reluctant contractual party is ordered by the court to perform as it had promised within the underlying agreement. Specific performance is a rare outcome and requires the judge to determine that an award of money damages could not provide proper compensation to the party allegedly victimized by the breach of the contract. A plaintiff is more likely to obtain an order of specific performance in a real estate sale dispute than in many other types of litigation actions. That is because of the inherently unique nature of a parcel of real estate.

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Published on: February 18, 2020

Georgia’s ‘Anti-SLAPP’ Statute and How it Can Affect Your Commercial Litigation Case

By Poole Huffman, LLC

When you are pursuing a commercial litigation action in Georgia, you might find yourself faced with many different types of arguments about why you should not be allowed to pursue your case. While some may relate directly to the facts of your case, others may have nothing at all to do with the underlying facts that led you into court. Whether the arguments against your case are factual, statutory, or procedural, it helps to have an experienced Georgia commercial litigation attorney on your side to make sure that your rights and interests are sufficiently represented and protected.

One case recently decided by the Georgia Court of Appeals involved a defense argument built on a specific statute: Georgia’s Anti-SLAPP law. The seeds of the dispute dated back to 2015, when members formed a Cumming, Ga.-based LLC holding company to hold some 2,718 acres in Santa Rosa County, Fla. An additional entity was formed at the same time for the express purpose of serving as the managing member of the holding company. There were four entities that were members of that managing member LLC.

Less than a year later, allegations were made that several entities had breached the holding company’s operating agreement. Specifically, the allegation was that they hadn’t made required capital contributions, a claim they denied. Nevertheless, the manager LLC was voted out as the managing member of the holding company and replaced with a different LLC. The members of that new managing member then announced their intention not to develop the bulk of the Florida property but instead to donate it to the government of Santa Rosa County as a tax write-off.

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Published on: February 11, 2020

Fraudulent Misrepresentation of Zoning in Real Estate Litigation

By Poole Huffman, LLC

The zoning of a parcel can be a critical concern for a buyer when entering into a purchase and sale agreement. In a recent Georgia appellate decision, a buyer appealed from summary judgment in favor of the defendants regarding fraud in the sale of real property. The buyer argued that the question of fraud was one for the jury since the defendants had knowingly misrepresented the zoning and concealed the city’s intent to demolish the property and the buyer shouldn’t be charged with constructive knowledge of demolition orders that were brought outside the chain of title.

The appellate court affirmed the part of the lower court’s order granting the defendants summary judgment for their misrepresentations about zoning, but reversed the lower court’s order granting summary judgment to the defendants with regard to misrepresentations about the city’s planned demolition of the property.

In 2012, the bank (trustee for two loan trust entities) foreclosed on two real property parcels that were sold to the buyer. The city had zoned the property as Urban Rural – Historical Infill. The zoning prevented multi-family housing, and the parcels had been granted a legal non-conforming use status. The city planner believed that a property’s legal non-conforming use could be verified through completion of an Application for Zoning Verification that could be attained by the city.

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Published on: September 12, 2018

A Contractor’s Lack of Licensure Proves to Be a Big Problem in Its Breach of Contract Lawsuit

By Poole Huffman, LLC

When you decide to pursue a breach of contract lawsuit, it is very important to make sure that all T’s are crossed and I’s dotted. Even seemingly small imperfections may do grave damage to your case. In one recent case, the lack of a contractor’s license proved to be a major problem for the plaintiff who sought damages for an alleged breach. Whether you are pursuing or defending a breach of contract action, you need to make sure you have an experienced Georgia commercial litigation attorney on your side.

The plaintiff in the lawsuit was a home building company that signed a contract for the construction of a residence in Cumming. After the builder had partially constructed the house, disputes arose between the owner and the builder. The owner terminated the contract before the job was completed. The sole owner of the building company, who had signed the contract on behalf of the building company, did not have a Georgia builder’s or contractor’s license when the builder did its work on the house.

After the owner terminated the agreement, the builder sued for breach of contract. The owner, in opposition, filed a motion with the court asking the judge to grant summary judgment, which would end the builder’s case before it even got to trial. The owner’s argument was that the owner of the building company was not properly licensed in Georgia, and Georgia law prohibits unlicensed contractors from enforcing a contract “or the performance of work for which a license is required.”

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Published on: June 18, 2015

Property Investors Beware: “Self-Help” Evictions are Never an Option

By Poole Huffman, LLC

There are many benefits to owning investment property in Georgia. But, like any investment, there are also risks. Tenants can be unpredictable at best and destructive at worst. So what can property investors do when they are stuck with a troublesome tenant?

In Georgia, a landlord may evict a tenant if: (1) the tenant fails to pay rent as agreed; (2) the tenant remains in possession of the property beyond the term of the lease; or (3) there is a tenancy at will or at sufferance. See O.C.G.A. § 44-7-50. A landlord may also evict a tenant if the lease agreement identifies a condition that, if breached, allows the landlord to terminate the lease.

However, in order to evict a tenant, landlords and property managers alike must follow Georgia’s strict statutory eviction process. This process requires the landlord to make a formal demand for the tenant to surrender possession of and vacate the property, and to file a dispossessory action. Dispossessory actions are typically filed in the magistrate court of the county in which the rental property is located.

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Published on: March 17, 2015

Contract for Deed – Its Background and Purpose – Part 1 of 5

By Poole Huffman, LLC

As the title suggests, this is the beginning of a five-part discussion about contract for deeds. In this series, I will discuss several topics relating to this contract, including the four remedies that a seller has upon borrower default and why most Georgia attorneys do not recommended this type of agreement for either buyers or sellers. I begin by providing a description of a contract for deed, its background and application.As the title suggests, this is the beginning of a five-part discussion about contract for deeds. In this series, I will discuss several topics relating to this contract, including the four remedies that a seller has upon borrower default and why most Georgia attorneys do not recommended this type of agreement for either buyers or sellers. I begin by providing a description of a contract for deed, its background and application.

A contract for deed is an archaic legal contract, which is seeing recent revival. Originally referred to as a bond for title, a contract for deed can be called several other names including a land contract, agreement for deed or installment sales contract. Under Georgia law, all these agreements are treated synonymously.

When a seller of real estate agrees to finance some or all of the purchase price to the buyer, he may use a contract for deed. While a contract for deed is one way of many to “seller-finance” a transaction, many sellers find it advantageous for the reasons outlined below. Other ways to seller-finance include a mortgage, security deed or lease-option contract.

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