O.C.G.A. § 41-1-5 (2019)

Annotations

Cross references. Covenants and warranties relating to

land transactions generally, § 44-5-60 et seq. Law reviews. For article discussing nuisances as “Hidden Liens,” see 14 Ga. St. B.J. 32 (1977). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION NOTICE OF EXISTENCE OF NUISANCE General Consideration This section is a codification of the common law. Bonner v. Welborn, 7 Ga. 296, 1849 Ga. LEXIS 142 (1849); Roberts v. Georgia Ry. & Power Co., 151 Ga. 241, 106 S.E. 258, 1921 Ga. LEXIS 214 (1921). Section inapplicable when alienee induces original injury. - This section does not apply when the original injury was caused by the alienee, hence, no notice to abate is necessary. Southern Ry. v. Puckett, 121 Ga. 322, 48 S.E. 968, 1904 Ga. LEXIS 133 (1904); Davis v. Beard, 202 Ga. App. 784, 415 S.E.2d 522, 1992 Ga. App. LEXIS 172 (1992). Duty required. - There must be a duty to abate a nuisance before liability for the maintenance of a continuing nuisance may attach. Bradford Square Condo. Ass’n v. Miller, 258 Ga. App. 240, 573 S.E.2d 405, 2002 Ga. App. LEXIS 1279 (2002), cert. denied, No. S03C0387, 2003 Ga. LEXIS 148 (Ga. Feb. 10, 2003). Lessee of property was liable for damages from continuing contamination the lessee originally caused, and the fact that the lessee had vacated the premises would not remove the lessee’s legal duty to abate the nuisance the lessee caused and which continued within four years of plaintiffs’ action. Smith v. Branch, 226 Ga. App. 626, 487 S.E.2d 35, 1997 Ga. App. LEXIS 614 (1997), cert. denied, No. S97C1414, 1997 Ga. LEXIS 890 (Ga. Oct. 10, 1997). Notice of Existence of Nuisance Notice of existence or request for abatement must be given alienee. - Notice to an alienee that the alienee will be held responsible for any damages subsequently caused by the nuisance will suffice in lieu of a specific request to abate. Central R.R. v. English, 73 Ga. 366, 1884 Ga. LEXIS 130 (1884); Central of Ga. Ry. v. Americus Constr. Co., 133 Ga. 392, 65 S.E. 855, 1909 Ga. LEXIS 222 (1909).

It is error to charge that a lessee need not receive notice when the evidence conflicted on the question of whether the lessee had increased the nuisance. Seaboard & R.R.R. v. Ambrose, 122 Ga. 47, 49 S.E. 815, 1905 Ga. LEXIS 112 (1905). Before a cause of action for maintenance of a nuisance arises against alienee of nuisance, there must be a notice of the existence of the nuisance, or a request to abate the nuisance, given to alienee; mere passive knowledge of the existence of the nuisance by alienee is not sufficient. Georgia Power Co. v. Fincher, 46 Ga. App. 524, 168 S.E. 109, 1933 Ga. App. LEXIS 132 (1933). While an action will lie without notice against one who erects and maintains a nuisance, notice is a prerequisite against one who merely acquires property on which there is an existing nuisance, passively permits the nuisance’s continuance, and adds nothing thereto. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520, 1933 Ga. App. LEXIS 420 (1933). Maintenance of the nuisance after notice is continuance of the nuisance, and the alienee of the property causing the nuisance is responsible for that continuance, if there is a request for abatement before action is filed. Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 426 S.E.2d 387, 1992 Ga. App. LEXIS 1757 (1992), cert. denied, No. S93C0532, 1993 Ga. LEXIS 336 (Ga. Apr. 8, 1993). Trial court correctly determined that a property owner’s failure to provide ante litem notice to an apartment owner prohibited the property owner from pursuing nuisance claims because, pursuant to O.C.G.A. § 41-1-5(b), the property owner was required to provide the apartment owner with notice of the nuisance or a request to abate prior to filing suit unless it did anything to increase the nuisance; the apartment owner acquired the property after detention ponds had been built and after storm water runoff from the

Notice of Existence of Nuisance (Cont’d) property had already become problematic on the property owner’s land, and the property owner presented no evidence that the apartment altered the property or took any other affirmative action to increase the nuisance. Haarhoff v. Jefferson at Perimeter L.P., 315 Ga. App. 271, 727 S.E.2d 140, 2012 Ga. App. LEXIS 357 (2012). Damages prior to notice cannot be recovered. City Council v. Marks, 124 Ga. 365, 52 S.E. 539, 1905 Ga. LEXIS 715 (1905); Roberts v. Georgia Ry. & Power Co., 151 Ga. 241, 106 S.E. 258, 1921 Ga. LEXIS 214 (1921). Any damages accruing prior to notice are not recoverable. - Macko v. City of Lawrenceville, 231 Ga. App. 671, 499 S.E.2d 707. Notice of abatement when alienee increases nuisance. - Grantee or alienee of property causing a nuisance is not liable for damages caused by its continued maintenance and accruing prior to a notice or request to abate; but it is also the rule that when the alienee of property on which is situated a nuisance does anything to increase the nuisance, the alienee may be sued without notice to abate. Savannah Elec. & Power Co. v. Horton, 44 Ga. App. 578, 162 S.E. 299, 1932 Ga. App. LEXIS 395 (1932). While notice is required to one who merely purchases land and fails to remove a nuisance created by another, yet it is not necessary to an alienee, who knowingly does some additional act to actively maintain and use a nuisance originally created by another, or does something to increase the existing nuisance or its injurious effects, and thus creates in effect a fresh nuisance. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520, 1933 Ga. App. LEXIS 420 (1933). Notice not sufficient. - Letters to homeowners were legally insufficient to give the required notice to abate a nuisance caused by the allegedly undersized drainage pipes; letter stated city blamed homeowners for not maintaining pipes and that if further litigation was necessary the homeowners could be named as

parties. Macko v. City of Lawrenceville, 231 Ga. App. 671, 499 S.E.2d 707. No duty to move away. - When a person rents land which is adjacent to a nuisance, one is under no duty to move away. Central R.R. v. English, 73 Ga. 366, 1884 Ga. LEXIS 130 (1884). Jury instruction on imputed notice of nuisance. - Upon the trial of a suit against alienee of a nuisance to recover damages for maintenance of the nuisance, which arises out of the construction of the dam which alienee’s predecessor in title had erected, and which alienee had not altered, it was error for the court to instruct jury that, if the agent of the defendant in charge of the dam as superintendent is the same person who had held the same position with the defendant’s predecessor in title, and who, as superintendent for latter, had notice of the existence of the nuisance, knowledge by one of this fact constituted notice to the defendant of the existence of the nuisance. Georgia Power Co. v. Fincher, 46 Ga. App. 524, 168 S.E. 109, 1933 Ga. App. LEXIS 132 (1933). Property purchased with knowledge of nuisance. - Purchaser of property upon which there is an existing nuisance is not barred from the purchaser’s right to recover damages resulting from a continuation of the nuisance by the defendant, after requesting the defendant to abate the nuisance, by the fact that the purchaser purchased the property with knowledge of the nuisance. Roughton v. Thiele Kaolin Co., 209 Ga. 577, 74 S.E.2d 844, 1953 Ga. LEXIS 332 (1953). Owner or lessee of land although taking with knowledge of a nuisance, has a right to presume that, being illegal, the nuisance will be abated; and, if it is not, one may sue for damages resulting to the owner or lessee therefrom. Ingram v. City of Acworth, 90 Ga. App. 719, 84 S.E.2d 99, 1954 Ga. App. LEXIS 794 (1954). Measure of damages. Mayor of Gainesville v. Robertson, 25 Ga. App. 632, 103 S.E. 853, 1920 Ga. App. LEXIS 112 (1920). Notice to the alienee cannot be set up by an amendment. Blackstock v. Southern Ry., 120 Ga. 414, 47 S.E. 902, 1904 Ga. LEXIS 572 (1904). Variance between allegations and proof. - Allegations that damage was caused by the erection of a nuisance by the

defendant are not supported by evidence that it was erected by the predecessor in title. Southern Ry. v. Cook, 106 Ga. 450, 32 S.E. 585, 1899 Ga. LEXIS 703 (1899);

DeLoach v. Georgia C. & P.R.R., 137 Ga. 633, 73 S.E. 1072, 1912 Ga. LEXIS 109 (1912).

RESEARCH REFERENCES Am. Jur. 2d. 58 Am. Jur. 2d, Nuisances, §§ 98, et seq.194. C.J.S. 66 C.J.S., Nuisances, §§ 100 et seq., 213. ALR. Liability for property damage caused by vibrations, or the like, without blasting or explosion, 79 A.L.R.2d 966.

Landowner’s right to relief against pollution of his water supply by industrial or commercial waste, 39 A.L.R.3d 910. “Coming to nuisance” as a defense or estoppel, 42 A.L.R.3d 344. Residential swimming pool as nuisance, 49 A.L.R.3d 545. Computer as nuisance, 45 A.L.R.4th 1212.