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McMurray v. Housworth - 282 Ga. App. 280, 638 S.E.2d 421 (2006)

Rule:

Under O.C.G.A. § 44-5-62, a general warranty of title against the claims of all persons includes three separate covenants: (1) a covenant of a right to sell, (2) a covenant of quiet enjoyment, and (3) a covenant of freedom from encumbrances. To constitute breach of the covenant of quiet enjoyment, an eviction or equivalent disturbance by title paramount must occur. A general warranty of title includes the warranty of freedom from encumbrances, and it is not necessary to show actual eviction. Where an encumbrance is a servitude or easement which can not be removed at the option of either the grantor or grantee, damages will be awarded for the injury proximately caused by the existence and continuance of the encumbrance, the measure of which is deemed to be the difference between the value of the land as it would be without the easement and its value as it is with the easement.

Facts:

Defendants Michael and Deborah Housworth sold a 24-acre tract of land to plaintiffs Lance and Melanie McMurray, and James and Alberta McMurray. A lake created by a dam was situated on the property. The McMurrays subdivided the tract into two parcels and told the Housworths that they planned to build residences on each parcel. After the sale, the McMurrays discovered that the owner and operator of the dam held a floodwater detention easement that burdened the McMurrays' parcels. The McMurrays thereafter filed a lawsuit against the Housworths in Georgia state court alleging breach of their general warranty of title. The superior court awarded summary judgment to the Housworths, holding, inter alia, that floodwater detention easements, like easements for public roadways and zoning regulations, did not breach a general warranty of title. The McMurrays appealed.

Issue:

Did the superior court err in analogizing the floodwater detention easement to a public roadway easement or zoning regulation and in thereby concluding that a floodwater detention easement was not the type of easement that breached a general warranty of title?

Answer:

Yes

Conclusion:

The court of appeals reversed the superior court's judgment. The court agreed with the McMurrays' allegation that the trial court erred in analogizing the floodwater detention easement to a public roadway easement or zoning regulation. Although the property benefited from the body of water that created the need for the easement, the easement burdened the property by permitting the impoundment of water on it to prevent flooding or increased water runoff on other property located downstream. And, even though the lake was certainly open and obvious, the same could not necessarily be said of the easement. Also, the court ruled, although  constructive notice of the easement by reason of its recordation within their chains of title would provide a compelling reason for exempting the easement from operation of the warranty deed, O.C.G.A. § 44-5-63 provided otherwise. Finally, eviction of the McMurrays did not have to occur before the Housworths could be found to have breached the general warranty of title.

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