September 25, 2022

Volume XII, Number 268

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Lease Words You Never Minded: Usufructs vs. Estates for Years

Introduction

In 1982, one of our authors published an article discussing the distinction between the usufruct and estate for years in the February edition of the Georgia State Bar Journal.1 Since that time, there has been little attention given to one of the most unique aspects of real estate law in the state of Georgia.2 As the 1982 article noted, the distinctions between the two concepts has a wide-reaching impact on practice that has not diminished in the last 38 years.3 Although this may seem hyperbolic for terms that elicit memories of devious 1L property professors or hours of bar exam preparation, this article intends to demonstrate why—by refreshing and updating the concepts discussed in 1982—practitioners should pay more attention to the significant effects that result by distinguishing between a usufruct and an estate for years.

Take for example the recent Georgia Court of Appeals ruling in Chatham County Board of Assessors v. Jay Lalaji, Inc., Airport Hotels.4 In 2006, Jay Lalaji, Inc., Airport Hotels entered a 50-year lease agreement with the Savannah Airport Commission to construct and operate a hotel on land owned by the Commission.5 At the time, the Chatham County Board of Assessors assigned the property an identification number and attempted to assess ad valorem taxes against Jay Lalaji, arguing that the lease created a taxable estate for years. If correct, Jay Lalaji would be assessed taxes for the property for the entire 50-year term of the lease.6 

However, using the analysis set forth below in this article, Jay Lalaji pled that it was granted a non-taxable usufruct in the property, rather than a taxable estate for years, and should therefore not be assessed taxes during the lease term.7 The result? The Georgia Court of Appeals agreed, holding that Jay Lalaji only received a “circumscribed interest and limited use of the premises,” saving Jay Lalaji from 50 years of ad valorem tax assessments on the leased premises.8 

Although the distinction may seem formal, learning the difference between a usufruct and an estate for years under Georgia law will be the lease words you never minded learning when such a windfall could be possible for you and your clients.

Terminology

To remain consistent with the 1982 article and the definitions set forth in the Georgia Code, this article will use the terms “landlord” and “tenant” to refer to the parties to an agreement conveying a usufruct, whereas the terms “grantor,” “grantee,” “lessor,” and “lessee” shall refer to the parties to an agreement conveying an estate for years.9 

Understanding the Usufruct and the Estates for Years

Basic Differences

Under the Georgia Code, a landlord-tenant relationship is created when the owner of real estate grants “the right simply to possess and enjoy the use of such real estate for a fixed period of time or at the will of the grantor.”10 This conveyance is known as a usufruct, because no estate passes from the landlord to the tenant. As referenced in Georgia case law, this conveyance is usually deemed a “mere usufruct” or “license to use” since the conveyance does not pass a real property interest to the tenant.11 

On the other hand, an estate for years passes as realty under the Georgia Code. An estate for years is limited to a fixed period or one that may be “fixed and certain,” and may convey any number of years “within the rule against perpetuities.”12 Given that Georgia has implemented a Uniform Statutory Rule Against Perpetuities with a 360-year vesting period after creation,13 an estate for years can be any number of “fixed and certain” periods under the law.

To distill the basic distinction, consider the following explanation from the Georgia Court of Appeals:

“[A]n estate for years is essentially a lease by which one person acquires a right to use real estate for a finite period ‘in as absolute a manner as may be done with a greater estate,’ so long as neither the property nor the person entitled to the reversionary interest in it is injured by that use. A usufruct, by contrast, is created when the owner of real estate grants to another person the right to use and enjoy the property for a fixed time or at the will of the grantor, as in a landlord-tenant relationship, but no property interest arises in the grantee.”14 

Rights, Privileges, and Distinctions

Aside from the technical differences in the Georgia Code, there are several key distinctions to the characterization. Chief among these distinctions is the level of rights and privileges conveyed to the tenant or grantee. Usufructs maintain the landlord-tenant relationship, “with privileges granted to tenants holding less interest in real estate than estate for years.”15 In other words, the usufruct grants the tenant the right to use and enjoy the property, but refrains from impairing or altering the substance of the property conveyed.16 The estate for years, however, places the grantee or lessee in “absolute control” of the estate, with “unqualified possession of the premises.”17 In simpler terms, under Georgia law, the lessee of an estate for years is treated as the owner, whereas the tenant of a usufruct is not.

Under Georgia law, the lessee of an estate for years is treated as the owner, whereas the tenant of a usufruct is not. With this ownership distinction comes several consequences.

With this ownership distinction comes several consequences. First, consider the duty to repair. When a usufruct is conveyed, the landlord must repair the premises and shall be liable for all substantial improvements thereon.18 However, roles shift for the estate for years. If the lease conveys an estate for years, the grantee must make the repairs and pay the expenses necessary for the “preservation and protection of the property.”19 

The key expenses, for many grantees, are taxes and liens levied on the property. Generally, all real property, including the leasehold, is subject to taxation and shall be taxed under the Georgia Code.20 A mere license or concession to operate or use a designated space is not considered a taxable interest.21 Due to the distinctions discussed above, an estate for years is a taxable estate.22 A usufruct, however, is a mere license to use.23 As a result, because the fee estate in the property remains with the landlord and is undisturbed when a usufruct is conveyed, the tenant is not taxed for the use and enjoyment of the usufruct.24 The same applies to a materialman’s lien, for example, which may attach to an estate or property interest in realty, like an estate for years, but not to a usufruct.25 The characterization has particular significance for third parties, such as taxing authorities.

Does My Agreement Convey a Usufruct, or an Estate for Years?

Given the different obligations and consequences associated with the statutory usufruct and the estate for years, the question arises, “How do Georgia Courts determine whether a particular agreement conveys a usufruct or an estate for years?”

Georgia case law makes clear that each case is evaluated by its own facts and circumstances.26 Yet, Georgia Courts are consistent in their examination. When determining whether an agreement conveys a usufruct or an estate for years, the Courts administer a balancing test, weighing several factors to determine the parties’ intent. This balancing test can be complicated, however, because agreements may have provisions indicative of an estate for years, while other provisions impose restrictions that are more typical of the grant of a usufruct.27 In some scenarios, there are even sections of agreements which “are in some respects indicative of a usufruct but in other ways characteristic of an estate for years.”28 Nonetheless, Georgia Courts begin by assessing the parties’ intent by looking at the agreement as a whole, considering its general characteristics, and then consider the specific provisions of the lease,29 analyzing key factors such as: (1) the express intent of the parties; (2) the length of the term conveyed; and (3) the right to control under the agreement.30 

The Express Intent of the Parties

In Georgia, the intent of the instrument itself is often considered the cardinal rule.31 When the parties so stipulate to a particular conveyance, that language is usually indicative of whether a usufruct or an estate for years is conveyed.32 For instance, when clauses such as “Tenant’s interest in the Leased Premises is a usufruct, not subject to levy and sale, and not assignable by Tenant except as expressly set forth herein,” or “This Lease creates only the relationship of landlord and tenant between Landlord and Tenant, and no estate in land shall pass out of Landlord,” then the characterization of the agreement seems clear.

The Georgia Supreme Court has emphasized the role intention plays in its balancing. If parties intend to convey only a usufruct, then the parties can simply make that intent clear.33 For example, in Allright Parking v. Joint City-County Bd., even though the agreement conveying a parking lot was for a fixed, 35-year term that contained several provisions consistent with an estate for years, the Georgia Supreme Court concluded that the conveyance was a mere usufruct, due in part to the parties’ stipulation to that effect.34 As more recently discussed by the Georgia Court of Appeals, any decision made by the Courts “may be mooted by the parties’ agreements.”35

Nevertheless, the parties’ intent has its limitations. The Georgia Supreme Court has held that third persons who are not parties to an agreement may not be bound by the stipulation that the agreement conveys a usufruct or an estate for years.36 In addition, the Courts may treat parties’ intent differently for private and public agreements. For instance, in Macon-Bibb County Bd. v. Atlantic Southeast Airlines, the Georgia Supreme Court—in analyzing whether ad valorem taxes were due—stated that “if the present case were between private parties, such express statements of intent would control.”37 However, because the case before the Court involved the subleasing of land between a private party and the City of Macon and Bibb County, the Court acknowledged that intention alone is not enough and heavier scrutiny of the remaining provisions is required.38  

The Length of the Term Conveyed

One such remaining provision is the length of the term conveyed. The tipping point to distinguish between a usufruct and an estate for years is five years. If the conveyance is for less than five years, the Georgia Code presumes that only the right to possess and enjoy, i.e., a usufruct, is conveyed.39 However, this presumption is rebuttable. According to the statutes, the five-year term is a useful marker, “unless the contrary is agreed upon by the parties to the contract and is so stated in the contract.”40 As a result, under Georgia law, the five-year mark serves as a rebuttable presumption that an agreement for less than five years conveys a usufruct, while an agreement for more than five years conveys an estate for years.41 

The Georgia Courts have grappled with this rebuttable presumption on numerous occasions.42 In Warehouses, Inc. v. Wetherbee, the Georgia Supreme Court noted that though the five-year presumption exists, “there is nothing to prevent a lease for five years or more from being narrowed by the terms of the contract itself so as to convey a usufruct only.”43 Rather than serve as a bright-line rule, the Court here noted that the five-year mark merely necessitates the balancing act to determine whether the agreement—as a whole—demonstrates the intent to “negative either by express terms or by necessary implication” the five-year presumption.44 In other words, the Courts view the five-year presumption in light of the rest of the agreement such that “the key inquiry” remains whether the other restrictions in an agreement negate the Georgia Code’s statutory presumption.45 

More recent cases have been more explicit in limiting the five-year presumption. For example, the Georgia Court of Appeals in Diversified Golf, LLC v. Hart County Bd. held that whether a conveyance is characterized as a usufruct or an estate for years depends more on the intention of the parties, and “this is true without regard to the length of the term.”46 In similar terms, the appellate Court came to the same conclusion just eight years later in 2012 in Pinnacle Properties V, LLC v. Mainline Supply47 and 14 years later in 2018 in City of College Park v. Paradies-Atlanta, LLC.48 Consequently, the Courts have made clear that the five-year presumption remains rebuttable, and the intent of the parties controls.

The Right to Control Under the Agreement

The other major factor to consider is the right to control the use of the premises. Control, like the remaining provisions of an agreement, is simply a factor considered by the Courts rather than a determinative, bright-line rule. However, the Georgia Supreme Court has noted that control is one factor that may rebut the five-year presumption.49 But, it is important to remember that even if an agreement would ordinarily create an estate for years, it is not immediately reduced to a statutory usufruct because certain limitations are put on its use.50 To the contrary, the interest may be limited without necessarily changing the character of the estate,51 such that an estate for years may be encumbered or somewhat limited without being reduced to a usufruct.52

To distill control’s role as a factor, the Georgia Courts evaluate whether the tenant-lessee takes a “circumscribed and limited use of the premises and facilities” where there are restrictions “so pervasive as to be fundamentally inconsistent with ownership” such that the owner retains “dominion and control” over the property.53 Take, for example, Diversified Golf, LLC v. Hart County Bd. There the Court recognized that the lease provisions “circumscribed and limited” Diversified’s use of the conveyed real estate to the point that only a usufruct could have been conveyed.54 Among other things, Diversified could not sell the property, nor permit a lien or security interest thereon.55 Likewise, the city recreation authority alone retained the right to impose easements, licenses, and “other rights or privileges in the nature of easements” on the property, while Diversified was required to act as the authority’s agent for the development and construction of the proposed golf course.56 

To distill control’s role as a factor, the Georgia Courts evaluate whether the tenant-lessee takes a “circumscribed and limited use of the premises and facilities” where there are restrictions “so pervasive as to be fundamentally inconsistent with ownership” such that the owner retains “dominion and control” over the property.

Other cases have considered the same effects of control. In Southern Airways v. DeKalb County, the Georgia Supreme Court recognized that despite the five-year presumption, if the parties intended that the tenant should enjoy only the right to possession and use of the leased premises, rather than any interest in the leased premises, then the lease shall be construed as a usufruct with a landlord-tenant relationship.57 In particular, because DeKalb County reserved its rights to “control, improvement, inspection and supervision of the premises, with the right of others to use the facilities,” when it conveyed land for use as an airport to Southern Airways Company in a 15-year lease, the Court concluded that the prima facie case for an estate for years was negated by the strong reservation of control in the landlord.58 As has been demonstrated in the years since Southern Airways v. DeKalb County, Georgia Courts often return to the “lack of dominion or control [as] what distinguishes th[e] case.”59

Yet, it is worth noting, the reservation of some control in the landlord-grantor does not automatically overcome the presumption of an estate for years. For instance, in State v. Davison, even though a 99-year lease contained certain covenants preventing the tenant-lessee from having absolute control over the premises, the conveyance was not reduced to a mere usufruct because—utilizing the full force of its balancing test—the Georgia Supreme Court determined that “such restrictions do not … outweigh the other features of the contract, so as to reduce the character of the right acquired … from that of a grantee of an estate for years to a mere usufruct.”60

Why Should I Concern Myself or My Clients with the Distinction?

With the above discussion of Georgia case law as a guidepost, some scenarios for practitioners who intend to create a usufruct or to convey an estate for years may be illustrative of potential pitfalls.

Tax Consequences

The tax consequences of the distinction between a usufruct and an estate for years cannot be understated. In 2015’s In re Airport Rental Car Facility Tax Appeals, the City of Atlanta, which owns and operates Hartsfield-Jackson Atlanta International Airport, built the consolidated rental car facility on land located in the City of College Park.61 When it discovered that the City was exempt from taxation on the airport facilities, Fulton County created new, separate real estate parcels purporting to represent different operators’ interests within the rental car facility. As a result, the rental car company operators were assessed taxes for each parcel from 2010 through 2015.

In their challenge of the tax assessment imposed upon the individual parcels, the operators pleaded with the court to consider that the operators were granted a usufruct, rather than estate for years.62 Using the analysis set forth in the preceding sections, the court agreed—the facility agreements granted only a statutory usufruct, not an estate for years, under Georgia law.

What was the upshot for the operators? Since their interests were merely usufructs, the court found the operators’ interests to be non-taxable, and granted the recovery of litigation costs and reasonable attorneys’ fees.63 Accordingly, the operators avoided “around $3.8 million” in tax liability from 2010 through 2015, and recovered approximately $120,000 in attorneys’ fees.64 

Ground Leasing

Practitioners typically assume that ground leases in Georgia convey an estate for years. The length of the term is usually more than five years, and ground lessees often possess ample dominion and control over the property to construct certain improvements thereon. Although the reservation of some control in the ground lessor does not automatically overcome the presumption that the ground lease conveys an estate for years, the ground lessor and ground lessee may stipulate that the ground lease is intended to convey a mere usufruct, is not assignable without ground lessor’s consent, and is not subject to levy and sale, all in order to clearly bypass the assumption that an estate for years has been conveyed.

However, as noted above, this stipulation has its limitations because third persons who are not parties to the ground lease may not be bound by the ground lessor and ground lessee’s stipulation.65 Any stated intention in the ground lease, when taken with the remaining provisions therein, may not be enough to pass muster once a heavier scrutiny of other relevant provisions occurs, especially when in the hands of a taxing authority or a third-party lender. As a result, practitioners should draft with third-parties in mind to ensure that the ground lessor and ground lessee’s intentions are adequately captured throughout the document.

Third-Party Lenders

On the subject of third-party lenders, leases of all types are collaterally assigned to mortgage lenders. Considering the various distinctions discussed herein between a usufruct and an estate for years, third-party lenders, especially those foreclosing on a piece of property, should be wary of the lease’s characterization of the collateral being encumbered. For example, a lender may want to reconsider whether certain collateral value in a lease is appropriate if the rights to the collateral convey only a “mere usufruct.”

Third-party lenders, especially those foreclosing on a piece of property, should be wary of the lease’s characterization of the collateral being encumbered.

Although this distinction may matter less if the lease covers an office or other “space,” the distinction could be significant if a lender has ground lease or lease collateral on an outparcel that the lender believes conveys a leasehold estate maintaining certain foreclosure rights. As stated above, the stipulation between the parties in the lease document may not be binding upon the third party, and Georgia courts will view the lease holistically. As an underwriting matter, borrowers and lenders should pay close attention to the value of the collateral described in the lease, and whether foreclosure rights cover a mere usufruct or an estate for years.

Pandemic – The Novel Coronavirus, or COVID-19

An unexplored—but increasingly pressing—concern with the distinction could arise in the event of a statewide pandemic like the novel coronavirus. As discussed above, a usufruct grants a mere right to use, rather than treating the tenant as the owner of the real estate. Therefore, termination of the lease agreement by the tenant for the direct and indirect consequences related to a COVID-type event or modification of the lease could be justified if the lease is a usufruct. Since the usufruct’s primary purpose is frustrated by the pandemic, i.e., the tenant cannot use the premises as leased from the landlord, then it would seem that termination is a viable option.

An estate for years, however, is not afforded the same leeway. Since the grantee is treated as the owner of the premises under the lease, then the grantee does not have the same basis to cry foul and seek lease termination under the Georgia Code and case law.

Conclusion

The consequences distinguishing a usufruct from an estate for years are as apparent as the legal distinction drawn in the Georgia Code. Whether assessing tax liability, or clarifying the rights and duties owed under a lease, the resulting property interests carry inherent significance. As such, it is important to keep the distinction top of mind during real estate lease drafting and negotiations, especially to reduce the uncertainty and unintended consequences that lie in wait.


FOOTNOTES

1 Joseph B. Foltz, Usufructs and Estates for Years Distinguished, 18 GA. ST. B. J. 116 (1982).

2 Georgia remains the only common law jurisdiction in the United States that makes the distinction between the landlord-tenant relationship which is treated as a usufruct and a lease which is treated as an estate for years. Louisiana – with its civil law traditions – is the only other state that recognizes the usufruct concept.

3 Foltz, supra note 1.

4 Chatham Cty. Bd. of Assessors v. Jay Lalaji, Inc., Airport Hotels, No. A20A0867, 2020 WL 5938675, at *1 (Ga. Ct. App. Oct. 7, 2020). The authors would like to thank Mr. W. Brooks Stillwell of Brooks Stillwell, LLC in Savannah, Georgia for bringing this case to our attention.

5Id. at *1.

6Id.

7Id.

8Id. at *4.

9 Foltz, supra note 1; O.C.G.A. §§ 44-6-1–44-6-206 (2020); O.C.G.A. §§ 44-7-1–44-7-119 (2020).

10 O.C.G.A. § 44-7-1(a) (2020).

11 Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94, 96, 735 S.E.2d 166, 169 (2012) (citing Read v. Ga. Power Co., 283 Ga. App. 451, 453, 641 S.E.2d 680 (2007)).

12 O.C.G.A. § 44-6-100(a)–(b) (2020).

13 O.C.G.A. § 44-6-201(a) (2020).

14Pinnacle Properties V, 319 Ga. App. at 96, 735 S.E.2d at 169.

15 Roe v. Doe, 246 Ga. 138, 140, 268 S.E.2d 901, 904 (1980) (quoting Martin v. Heard, 239 Ga. 816, 818, 238 S.E.2d 899, 901 (1977)).

16 State v. Davison, 198 Ga. 27, 37, 31 S.E.2d 225, 230 (1944).

17 Evans Theatre Corp. v. De Give Investment Co., 79 Ga. App. 62, 65–66, 52 S.E.2d 655, 658 (1949).

18 Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723, 726, 49 S.E.2d 779, 782 (1948).

19 Id.

20 O.C.G.A. § 48-5-3 (2020); Diversified Golf, LLC v. Hart Cty. Bd. of Tax Assessors, 267 Ga. App. 8, 10, 598 S.E.2d 791, 793 (2004).

21 1 GA. Real Estate Law & Procedure § 4:12 (7th ed. 2020 update).

22 Allright Parking of Georgia, Inc., et al. v. Joint City-Cty. Bd. of Tax Assessors for the City of Atlanta Cty. of Fulton et al., 244 Ga. 378, 385, 260 S.E.2d 315, 320 (1979) (citing Delta Air Lines, Inc. v. Coleman, 219 Ga. 12, 131 S.E.2d 768 (1963)); see also Evans Theatre Corp., 79 Ga. App. at 66, 52 S.E.2d at 658 (stating that the “owner of an estate for years is liable for the taxes on the land, whereas a tenant is not, where there is a mere tenancy”).

23 Allright Parking, 244 Ga. at 385, 260 S.E.2d at 320 (citing Whitehead v. Kennedy, 206 Ga. 760, 761, 58 S.E.2d 832, 833 (1950)); see also Diversified Golf, 267 Ga. App. 8, 598 S.E.2d 791 (holding that the lessee took a usufruct under the lease, and thus the property was exempt from ad valorem taxation); see also Macon-Bibb Cty. Bd. of Tax Assessors v. Atlantic Southeast Airlines, 262 Ga. 119, 414 S.E.2d 635 (1992) (supporting the proposition that a usufruct is not considered an interest in land and therefore it is not subject to ad valorem taxation).

24 Id.

25 Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94, 96, 735 S.E.2d 166, 169 (2012).

26 Evans Theatre Corp., 79 Ga. App. at 69, 52 S.E.2d at 660.

27 Jekyll Development Assoc. v. Glynn Cty. Bd. of Tax Assessors, 240 Ga. App. 273, 275, 523 S.E.2d 370, 372 (1999).

28 Id. at 276, 523 S.E.2d at 373.

29 Diversified Golf, LLC v. Hart Cty. Bd. of Tax Assessors, 267 Ga. App. 8, 11, 598 S.E.2d 791, 794 (2004).

30 See, e.g., Allright Parking of Georgia, Inc., et al. v. Joint City- Cty. Bd. of Tax Assessors for the City of Atlanta Cty. of Fulton et al., 244 Ga. 378, 386, 260 S.E.2d 315, 320 (1979) (describing the difficulty associated with administering the Court’s balancing test due to “the fact that various sections of the lease are indicative of the grant of an estate for years, whereas other sections of the lease are characteristic of the grant of a usufruct only”); Ginsberg v. Wade, 95 Ga. App. 475, 478, 97 S.E.2d 915, 917 (1957) (demonstrating that a jury is authorized to find that a landlord-tenant relationship exists, even when considering “the intention of the parties and the severability of the amount of rent to be paid for different years”).

31 Allright Parking, 244 Ga. at 385, 260 S.E.2d at 320.

32 John Taylor, A Loss for the Tax Man: Usufructs in Georgia, Taylor English Duma LLP Blog (Aug. 14, 2018),

33 Roe v. Doe, 246 Ga. 138, 140, 268 S.E.2d 901, 904 (1980).

34 Allright Parking, 244 Ga. 378, 260 S.E.2d 315.

35 Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94, 100, 735 S.E.2d 166, 172 (2012).

36 Allright Parking, 244 Ga. at 381, 260 S.E.2d at 318 (stating that although Section 4a of a parking lot conveyance stated, “[I]t is acknowledged and agreed that, upon execution of this Agreement, Tenant’s interest in the Premises shall be only a usufruct,” third persons not parties to the agreement, such as tax assessors, health officials, subtenants, sublessees, or creditors, are not bound by that stipulation).

37 Macon-Bibb Cty. Bd. of Tax Assessors v. Atlantic Southeast Airlines, 262 Ga. 119, 119–120, 414 S.E.2d 635, 636 (1992).

38 Id. at 120, 414 S.E.2d at 636.

39 O.C.G.A. § 44-7-1(b) (2020).

40 Id.

41 Diversified Golf, LLC v. Hart Cty. Bd. of Tax Assessors, 267 Ga. App. 8, 10, 598 S.E.2d 791, 794 (2004) (citing Macon-Bibb Cty., 262 Ga. 119, 414 S.E.2d 635); see also Ginsberg v. Wade, 95 Ga. App. 475, 478, 97 S.E.2d 915, 917 (1957) (stating that “it is also true that all leases for five years do not necessarily create an estate for years but that there is a presumption that a lease for five years does convey an estate for years”).

42 See, e.g., Hutcheson v. Hodnett, 115 Ga. 990, 42 S.E. 422 (1902) (supporting the proposition that the other provisions of the lease are examined by the Courts to determine if they evidence an intent contrary to the presumption created by the term provision); Warehouses, Inc. v. Wetherbee, 203 Ga. 483, 46 S.E.2d 894 (1948) (stating that an express designation would be controlling if consistent with a presumption of usufruct or estate for years created by other provisions in the agreement); Camp v. Delta Airlines, Inc., 232 Ga. 37, 205 S.E.2d 194 (1974) (discussing the rebuttable presumption that an agreement to lease for more than five years conveys an estate for years).

43 Warehouses, Inc., 203 Ga. at 484, 46 S.E.2d at 896.

44 Id. at 485, 46 S.E.2d at 896.

45 Camp, 232 Ga. at 40, 205 S.E.2d at 196.

46 Diversified Golf, 267 Ga. App. at 10, 598 S.E.2d at 794.

47 Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94, 99, 735 S.E.2d 166, 171 (2012), citing Diversified Golf, 267 Ga. App. 8, 598 S.E.2d 791.

48 City of College Park v. Paradies-Atlanta, LLC, 346 Ga. App. 63, 66, 815 S.E.2d 246, 249 (2018) (citing Richmond Cty. Bd. of Tax Assessors v. Richmond Bonded Warehouse Corp., 173 Ga. App. 278, 325 S.E.2d 891 (1985)) (stating, “To resolve whether the presumption has been overcome in this case, we must examine the terms of the lease agreements and determine what interests the parties intended to convey”).

49 Camp, 232 Ga. 37, 205 S.E.2d 194.

50 Id. at 40, 205 S.E.2d at 196.

51 Id.

52 Jekyll Development Assoc. v. Glynn Cty. Bd. of Tax Assessors, 240 Ga. App. 273, 275, 523 S.E.2d 370, 372 (1999); see also Diversified Golf, 267 Ga. App. at 10–11, 598 S.E.2d at 794 (stating “if the lease imposes sufficient conditions and limitations upon the use of the premises to negate the conveyance of an estate for years the interest passed is reduced to a mere usufruct”).

53 Diversified Golf, 267 Ga. App. at 14, 598 S.E.2d at 796.

54 Id.

55 Id. at 13, 598 S.E.2d at 795.

56 Id. at 13, 598 S.E.2d at 796.

57 Southern Airways Co. v. DeKalb Cty., 216 Ga. 358, 360, 116 S.E.2d 602, 604 (1960).

58 Id. at 365, 116 S.E.2d at 607. The same emphasis on control was evident in Midtown Chain Hotels Co. v. Bender. There, a five-year hotel lease—which met the presumptive period mark—was deemed a usufruct because the landlord maintained the right to enter and retake the premises, limit the premises to hotel use only, prevent assignment or sublease, and prevent any structural repairs by the tenant.

59 Buoy v. Chatham Cty. Bd. of Tax Assessors, 142 Ga. App. 172, 173, 235 S.E.2d 556, 558 (1977) (stating in full that “This lack of dominion or control is what distinguishes this case from Southern Airways”).

60 State v. Davison, 198 Ga. 27, 42, 31 S.E.2d 225, 233 (1944).

61 Order Granting the Operators’ Motion for Summary Judgment at 3, In re Airport Rental Car Facility Tax Appeals, 2016-CV-283425 (Super. Ct. of Fulton Cty. Apr. 19, 2017).

62 Id. at 11.

63 Id. at 16.

64 Final Order, In re Airport Rental Car Facility Tax Appeals, 2016-CV-283425 (Super. Ct. of Fulton Cty. May 30, 2017).

65  Allright Parking of Georgia, Inc., et al. v. Joint City- Cty. Bd. of Tax Assessors for the City of Atlanta Cty. of Fulton et al., 244 Ga. 378, 381, 260 S.E.2d 315, 318 (1979) (stating that third persons not parties to the agreement, such as tax assessors, health officials, subtenants, sublessees, or creditors, are not bound by a stipulation found between the parties of an agreement).

Copyright © 2022 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XII, Number 244
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About this Author

Joseph Foltz Transactional Attorney Womble Bond Dickinson Atlanta
Partner

Joe Foltz is a transactional attorney with a passion for helping clients achieve their goals. For more than three decades, Joe has been one of the Atlanta market’s leading attorneys for regional, national and international transactions. A trusted advisor, Joe is known for his practical, business-focused counsel, his creative solutions, and unwavering devotion to his clients.

Joe regularly represents developers, property owners, managers and equity investors in the acquisition, development, leasing, structured financing, and management of commercial real estate, including hotels,...

404.879.2478
Seth Pierce Johnson Real Estate Attorney Womble Bond Law Firm
Associate

Seth Johnson is an associate in the Real Estate Group of Womble Bond Dickinson’s Atlanta office. Seth’s practice focuses on commercial real estate transactions, including real estate sales and purchases, corporate structuring, commercial finance, local zoning, leasing, and franchise negotiation issues.

Before beginning his legal career, Seth served as Managerial and Editorial Board Member of the Georgia Law Review at the University of Georgia School of Law.

404-879-2437
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