(Orig. Code 1863, § 2255; Code 1868, § 2247; Code 1873, § 2273; Code 1882, § 2273; Civil Code 1895, § 3109; Civil Code 1910, § 3685; Code 1933, § 85-801.)
Law reviews.- For article analyzing legal aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article discussing ad valorem taxation and interest in real property in Georgia, prior to the enactment of provisions in the public revenue statute, T. 48, see 31 Mercer L. Rev. 293 (1979). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982). For note discussing assignment and subletting, see 2 Mercer L. Rev. 412 (1951). For comment regarding distinction between estate for years and landlord-tenant relationship, in light of State v. Davison, 198 Ga. 27, 31 S.E.2d 255 (1944), see 7 Ga. B.J. 233 (1944).
JUDICIAL DECISIONSANALYSIS
Cited in Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937); Aven v. Steiner Cancer Hosp., 189 Ga. 126, 5 S.E.2d 356 (1939); Murphy v. Johnston, 190 Ga. 23, 8 S.E.2d 23 (1940); Boykin v. Bradley, 192 Ga. 212, 14 S.E.2d 734 (1941); Gilbert Hotel, Inc., No. 4 v. Jones, 157 F.2d 717 (5th Cir. 1946); Evans Theatre Corp. v. De Give Inv. Co., 79 Ga. App. 62, 52 S.E.2d 655 (1949); Superior Pine Prods. Co. v. Williams, 214 Ga. 485, 106 S.E.2d 6 (1958); Union Camp Corp. v. Dyal, 460 F.2d 678 (5th Cir. 1972); Smith v. Top Dollar Stores, Inc., 129 Ga. App. 60, 198 S.E.2d 690 (1973); Tenstate Distribution Co. v. Averett, 397 F. Supp. 1227 (N.D. Ga. 1975); LeBlanc v. Easterwood, 242 Ga. 99, 249 S.E.2d 567 (1978); Killingsworth v. French & Whitten Realtors, 148 Ga. App. 29, 251 S.E.2d 40 (1978); Clayton County Bd. of Tax Assessors v. City of Atlanta, 164 Ga. App. 864, 298 S.E.2d 544 (1982); Eastern Air Lines v. Joint City-County Bd. of Tax Assessors, 253 Ga. 18, 315 S.E.2d 890 (1984).
Creation
Presumption that five-year lease conveys estate for years.
- All leases for five years do not necessarily create an estate for years, but there is a presumption that a lease for five years does convey an estate for years. Ginsberg v. Wade, 95 Ga. App. 475, 97 S.E.2d 915 (1957).
Agreement must be searched for parties' intention.
- When the grant is for a period of over five years, the presumption arises that an estate for years is intended to be created. In each instance, the agreement involved must be carefully searched for the intention of the parties. Henderson v. Tax Assessors, 156 Ga. App. 590, 275 S.E.2d 78 (1980).
Lease for a period of five years or more is an estate for years under the provisions of this statute. Ward v. McGuire, 213 Ga. 563, 100 S.E.2d 276 (1957) (see O.C.G.A. § 44-6-100).
Characteristics
Estate for years in land passes as realty. Wright v. Central of Ga. Ry., 146 Ga. 406, 91 S.E. 471 (1917), rev'd on other grounds, 248 U.S. 525, 39 S. Ct. 181, 63 L. Ed. 401; 250 U.S. 519, 40 S. Ct. 1, 63 L. Ed. 1123 (1919).
Plaintiff had a written lease from the owner of the premises in question for a term of five years. This created an estate in realty in the lessee as an estate for years which, if it be in lands, passed as realty in this state. Anderson v. Kokomo Rubber Co., 161 Ga. 842, 132 S.E. 76 (1926).
Lease of lands for five years or more creates an estate for years and passes as realty in this state. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933).
Estate for years may be bought and sold as any other estate. Clark v. Herring & Mock, 43 Ga. 226 (1871); James G. Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593, 79 S.E. 465 (1913).
Lease of land for five years or more which creates an estate for years may be bought and sold as any other estate, subject to the terms and conditions of the lease. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933).
An estate for years may be the subject matter of a sale. Murrah v. First Nat'l Bank, 225 Ga. 613, 170 S.E.2d 399 (1969).
Ordinarily, words "sale of property" signify that sale of fee simple title is contemplated, and not the sale of a limited estate in the property. Murrah v. First Nat'l Bank, 225 Ga. 613, 170 S.E.2d 399 (1969).
Lease of estate for years same as sale of estate.
- Sale of lands by a guardian for reinvestment may be made at public or private sale under the direction of the judge of the superior court, and the lease of an estate for years of lands is in effect the sale of an estate for years therein. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933).
Holder of estate may maintain damage action against tenant wrongfully holding over.
- When the owner of land conveys the land for such a term of years as to convey an estate for years in the land, the holder of the estate may, if entitled to possession under the conveyance, maintain an action for damages against a tenant for wrongful holding over and beyond the tenant's term. Baxley v. Davenport, 75 Ga. App. 659, 44 S.E.2d 388 (1947).
Usufruct Distinguished
When lease term less than five years, presumption that usufruct created.
- When the term of the lease is less than five years, a rebuttable presumption arises that only a usufruct is created by the instrument, but when the term of the lease is for more than five years, there is a presumption that an estate for years is created by the agreement of the parties. Camp v. Delta Air Lines, 232 Ga. 37, 205 S.E.2d 194 (1974).
Contract not reduced to usufruct as result of certain limitations upon use.
- Contract which ordinarily would be construed to create an estate for years is not reduced to a mere usufruct because certain limitations are put upon its use. The interest so passing may be encumbered or somewhat limited without necessarily changing the character of the estate. Camp v. Delta Air Lines, 232 Ga. 37, 205 S.E.2d 194 (1974).
Usufruct not taxable estate.
- Estate for years is a taxable estate, while a mere usufruct, sometimes referred to as a license to use, is not a taxable estate. Camp v. Delta Air Lines, 232 Ga. 37, 205 S.E.2d 194 (1974).
Lessees given usufruct look to owner to place them lawfully in possession.
- When the owner of lands does not convey the title or an estate therein but gives the lessees only the usufruct, the lessees may not maintain an action for damages or one to recover possession from a tenant of the owner who is alleged to be holding over and beyond the term for which one rented the premises, but the lessees must look to the owner to place them in possession of the premises, and may maintain an action for damages against one for a refusal or failure to do so. Baxley v. Davenport, 75 Ga. App. 659, 44 S.E.2d 388 (1947).
Illustrative Cases
Estate for years in standing timber is realty. Newton v. Allen, 220 Ga. 681, 141 S.E.2d 417 (1965).
Lease of lands for five years or more creates estate for years and passes as realty in this state. Such an estate may be bought and sold as any other estate, subject to the terms and conditions of the lease. Paces Partnership v. Grant, 212 Ga. App. 621, 442 S.E.2d 826 (1994).
Estate for years held created.
- Conveyance of a room for a stipulated sum to be kept as a first-class bar room is an estate for years in the property - a purchase of an interest in the estate for a limited period. Under this statute, it passes an estate as realty. Clark v. Herring & Mock, 43 Ga. 226 (1871) (see O.C.G.A. § 44-6-100).
When husband and wife rent a hotel together for a term of five years or more, an estate in realty is acquired, and the relation of tenants in common exists. Schofield v. Jones, 85 Ga. 816, 11 S.E. 1032 (1890).
Contract in which the Board of Regents of the University System of Georgia leased a tract of land to a fraternity for a term of 99 years, for a rent of $1.00 per year, and which allowed the fraternity to erect a building on the premises, transfer, sell, or convey the property to another fraternity, and following which the fraternity executed a mortgage to secure a loan made by the mortgagee-regents and which was recorded, despite certain restrictions and covenants preventing the lessee from exercising absolute control over the property, granted the fraternity an estate for years, and not a mere leasehold; such an interest could be levied upon for the failure to pay taxes. State v. Davison, 198 Ga. 27, 31 S.E.2d 225 (1944), commented on in 7 Ga. B.J. 233 (1944).
Lease which ran for 25 years and had a renewal provision for two additional ten year periods created an estate for more than 20 years made under seal. Brackett v. Cartwright, 231 Ga. App. 536, 499 S.E.2d 905 (1998).
When most sections of a lease either granted rights to or imposed obligations upon the lessee consistent with the conveyance of an estate for years, or set forth restrictions designed to preserve a hotel on the property as a historic structure and protect the lessor's reversionary interest, and the remaining restrictions did not quantitatively or qualitatively outweigh the incidents of ownership vested in the lessee to convert the interest conveyed from the intended leasehold estate to a usufruct, it was proper to require the lessee to pay ad valorem taxes on its interest in the hotel. Jekyll Dev. Assocs., L.P. v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 273, 523 S.E.2d 370 (1999).
Contract action between two non-debtor parties over rights pertaining to leasehold, an estate of years which passed as real property under O.C.G.A. § 44-6-100 and of which debtor was an interest holder, was not related to the debtor's bankruptcy so as to establish jurisdiction under 28 U.S.C. § 1334 because the lease was deemed rejected by the trustee under operation of law pursuant to 11 U.S.C. § 365 and was thus not a part of the bankruptcy estate under 11 U.S.C. § 541. Southeast LandCo, LLC v. 150 Beachview Holdings, LLC, F. Supp. 2d (S.D. Ga. Sept. 20, 2006).
Effect of performance on parol contract for rent of land.
- When a tenant, after making a parol contract for the rent of land for three years, had sufficiently performed, the tenancy, though ordinarily void under the statute of frauds, could not be treated as a tenancy at will. Petty v. Kennon, 49 Ga. 468 (1873).
Estate for years not created.
- No estate for years and no interest in land were created by agreement between property owner and oil company when the latter had no right to use the land and no interest was conveyed by simply promising to sell oil company's products and by allowing the company to make improvements on the land. Copelan v. Acree Oil Co., 249 Ga. 276, 290 S.E.2d 94 (1982).
Carrying weapons on property leased by city.
- If the city, a public entity, was the holder of a present estate under the lease, the leased premises was not private property within the meaning of O.C.G.A. § 16-11-127(c), thus, the garden would have no right to exclude the carrying of firearms on the leased premises because the garden was not in legal control of private property through a lease; however, since the lease was not in the record on appeal the garden was not entitled to summary judgment. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829, 834 S.E.2d 27 (2019).
OPINIONS OF THE ATTORNEY GENERAL
Five-year lease presumed to convey estate for years.
- Lease of land for five years or longer which does not by the lease's own terms purport an intention to convey a lesser interest will be presumed to convey an estate for years and as such passes as realty. 1969 Op. Att'y Gen. No. 69-352.