O.C.G.A. § 44-6-102 (2019)

Annotations

Cross references. - Provision that owner of property owns upward and downward indefinitely, §§ 44-1-2, 51-9-9. Obtaining of title to mineral rights through adverse possession, § 44-5-168. Landlord and tenant relationship generally, Ch. 7 of this title. Law reviews. - For article analyzing legal

aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

JUDICIAL DECISIONS ‘‘Lease’’ defined. - Under a ‘‘lease’’ one grants to another an estate for years out of one’s own estate, reversion to oneself. Hooper, Hough & Force v. Dwinnell, 48 Ga. 442 (1873). Lease proper is an estate for years. Harms v. Entelman, 21 Ga. App. 295, 94 S.E. 276 (1917). ‘‘Lessee’’ defined. - Technically, the word ‘‘lessee’’ denotes the holder of a contract for the possession and profits of lands and tenements for a fixed term, for life, or at will. Lang v. Hitt, 149 Ga. 667, 101 S.E. 795 (1920). ‘‘Subletting’’ is a leasing by lessee of a whole or a part of the premises during a portion of the unexpired balance of the lessee’s term. Georgia Power Co. v. Fletcher, 113 Ga. App. 559, 148 S.E.2d 915 (1966). ‘‘Lease’’ and ‘‘bailment’’ compared. - Both lease and bailment indicate contractual relationship, and the terms are not necessarily mutually exclusive. A lease may refer to a contract involving realty or personalty, or both, whereas a bailment involves the custody of personalty. Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470, 174 S.E.2d 219 (1970). Leasing conveys to lessee right to possess and enjoy estate. - Leasing, even for less than a year, conveys to the lessee the right to possess and enjoy the real estate, though it passes no estate out of the lessor. It gives to the lessee the usufruct for the specified term. Georgia Power Co. v. Fletcher, 113 Ga. App. 559, 148 S.E.2d 915 (1966). Extension of lease not waiver of right to damages for lessor’s breach of contract. - When the lessor of timber rights breaches

the agreement by allowing a third party to enter and cut timber, and thereafter acknowledges the breach and enters into negotiations with the lessee for the purpose of reaching a settlement as to the amount of damages sustained, an extension of the lease agreement thereafter made, not as a satisfaction of the damages, but as a matter of mutual agreement to allow additional time in which a settlement can be reached, does not constitute a waiver of the rights of the lessee thereafter to insist upon damages resulting from the breach of contract. Gamble v. Hogan, 88 Ga. App. 430, 76 S.E.2d 658 (1953). 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. - 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); Paces Partnership v. Grant, 212 Ga. App. 621, 442 S.E.2d 826 (1994). Lease of estate for years is in effect the sale of estate for years therein. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933). Contract granting party right to take clay from land for definite term constitutes lease. - Contract which grants to one of the parties thereto the use and occupation of the premises for a definite term with the right to take brick clay from certain land of the other party and manufacture the same

into merchantable brick, for a valuable consideration moving from the other party thereto, during a specified term of years, is a lease. Palmer Brick Co. v. Woodward, 138 Ga. 289, 75 S.E. 480 (1912). Conveyance of room for stipulated sum is estate for years. - Conveyance of a room for a stipulated sum to be kept as a first-class bar room can hardly be called a lease, since it wants one of the marked ingredients of a lease, the agreement to pay rent. Clark v. Herring & Mock, 43 Ga. 226 (1871). Under the crop adjustment program, the federal government acquires no right to possession, no usufruct. The government simply acquires the right to say to the farmer that the farmer shall use the farmer’s lands in a fashion determined to promote soil building and soil conservation. The government neither ‘‘reaps nor sows.’’ It does nothing in the way of taking over, or of taking possession. Whatever is done or to be done to the land must be done by the farmer personally. The farmer retains full posses-

sion. The farmer has the usufruct, but must use it for the betterment of the soil. Georgia Power Co. v. Fletcher, 113 Ga. App. 559, 148 S.E.2d 915 (1966). Minerals in place part of real estate. - While this statute refers to the grant of a mining interest in land as a ‘‘lease,’’ the authorities uniformly hold that minerals in place are a part of the real estate with all the attributes and incidents peculiar to the ownership of land. Rockefeller v. First Nat’l Bank, 213 Ga. 493, 100 S.E.2d 279 (1957) (see O.C.G.A. § 44-6-102). Cited in Hutcheson v. Hodnett, 115 Ga. 990, 42 S.E. 422 (1902); Consolidated Whse. Co. v. Smith, 55 Ga. App. 216, 189 S.E. 724 (1937); Warehouses, Inc. v. Wetherbee, 203 Ga. 483, 46 S.E.2d 894 (1948); Superior Pine Prods. Co. v. Williams, 214 Ga. 485, 106 S.E.2d 6 (1958); Henson v. Airways Serv., Inc., 220 Ga. 44, 136 S.E.2d 747 (1964); Stone Mt. Game Ranch, Inc. v. Hunt, 746 F.2d 761 (11th Cir. 1984).

RESEARCH REFERENCES Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 1, 2, 5, 7, 8, 24. C.J.S. - 31 C.J.S., Estates, § 67. 51C C.J.S., Landlord and Tenant, § 202. ALR. - Construction of provision for free gas in oil and gas lease, 9 ALR 89. What amounts to an option to renew or extend a lease, 26 ALR 1413. Right to partition as affected by severance of estate in mineral from estate in surface by one or more of cotenants, 39 ALR 741. Oil or gas or other mineral rights in land as affected by language in conveyance specifying purpose for which the property is to be used, 39 ALR 1340. Duty of lessee or purchaser of mineral rights other than oil or gas as to development and operation, 60 ALR 901; 76 ALR2d 721. Duty of lessee under oil or gas lease to drill ‘‘protection’’ wells, 60 ALR 950. Rights and remedies of parties where landlord fails to exercise option to renew lease at end of term or pay lessee for improvements, 63 ALR 1158. Special assessments as within provisions of a lease requiring lessee to pay ‘‘taxes,’’ ‘‘taxes and assessments,’’ as variations, 63 ALR 1391.

Right to incidental gas or oil under mining lease, 64 ALR 734. Contract for the sale of gas or oil produced from wells on leased premises as creating an interest or equity affecting a subsequent assignee or lessee, 64 ALR 1244. Covenant in mining lease to develop property as affected by provisions for delay rental, 67 ALR 221. Commencement of development within fixed term as extending term of oil and gas lease, 67 ALR 526. Effect of acquisition by assignee or sublessee of lessee in mining lease of rights inconsistent with those reserved by less, 69 ALR 936. Construction and effect of provisions of lease as to rights or remedies in event of tenant’s failure to vacate, 71 ALR 1448. Sublease as breach of covenant against assignment, 74 ALR 1018. Provision in oil, gas, or mining lease fixing a minimum obligation on lessee as the maximum measure of his right, 76 ALR 836. Acceptance of rents or royalties under oil and gas lease as waiver of forfeiture for breach of covenant or condition regard drilling of wells, 80 ALR 461.

Construction and effect of condition of provision of lease for option of renewal, that lease shall have been satisfactory, 81 ALR 1058. Development of land and payment of royalties under oil and gas lease as affected by assignment of lease or sublease as to portion of the land, 82 ALR 1273. Rights under gas or oil lease or grant, or operating agreement, in respect of wet or casing-head gas or gasoline recovered therefrom, 82 ALR 1304. Right to maintain action for damages as for breach of contract upon lease defectively executed, 82 ALR 1318. What are ‘‘minerals’’ within deed, lease, or license, 86 ALR 983. Liability of lessee’s assignee to lessor for rent accruing after assignment by him, in the absence of assumption of covenant of lease, 89 ALR 433; 148 ALR 196. Rule of estoppel of tenant to deny landlord’s title as applicable where landlord affirmatively asserts a title or interest beyond that essential to his right to create the tenancy, 89 ALR 1295. Agreement by lessee with third person permitting use of the property as violation of covenant in lease against assigning or subletting, 89 ALR 1325. Breach of covenant in lease for payment of taxes as ground for cancelation, rescission, or termination of lease, 93 ALR 1243. Transfer by lessee of part of demised premises for remainder of term of lease as an assignment pro tanto of the original lea or as a sublease, 99 ALR 220. Consideration for assumption of obligation of lease by assignee thereof, 100 ALR 1232. Provision of lease authorizing its termination by lessor in event of insolvency, bankruptcy, or receivership of lessee, 115 ALR 1189; 168 ALR 504. Leasehold interest as within statutes relating to community real estate, 122 ALR 652. Validity and effect of covenant by lessee, as regards his activities after expiration of lease, 122 ALR 1031. Part performance to take oral contract of lease out of statute of frauds predicated upon acts or conduct of one in possession of the property under another contract or right, 125 ALR 1468. Validity of lease or other contract which

contemplates or provides for acts by a party that at the time of the contract w be contrary to zoning regulations, 128 ALR 87. Validity and effect of acceleration clause in lease or bailment, 128 ALR 750. Storage contract as a bailment of chattels, or lease of place where chattels are stored, 138 ALR 1137. Deed or mortgage of real estate as affecting right to oil and gas or royalty interest under existing lease, 140 ALR 1280. Water as within term ‘‘minerals’’ in deed, lease, or license, 148 ALR 780. Construction of deed of undivided interest in land, as to fractional interest in oil, gas, or other minerals, or in royal reserved or excepted, 163 ALR 1132. Construction and application of provision in lease under which landlord is to receive percentage of lessee’s profits or receipts, 170 ALR 1113; 38 ALR2d 1113. Conveyance or reservation of minerals as including minerals recoverable only by open pit mining, 1 ALR2d 787. What constitutes oil or gas ‘‘royalty,’’ or ‘‘royalties,’’ within language of conveyance, exception, reservation, devise, or assignment, 4 ALR2d 492. Joining in instrument as ratification of or estoppel as to prior ineffective instrument affecting real property, 7 ALR2d 294. Abandonment of oil or gas lease by parol declaration, 13 ALR2d 951. What constitutes a ‘‘sale’’ of real property within purview of clause in lease making renewal clause inoperative in event of such contingency, 15 ALR2d 1040. Law governing validity and construction of, and rights and obligations arising under, a lease of real property, 15 ALR2d 1199. Rights of tenant for life or for years and remaindermen inter se in royalties or rents under oil, gas, coal, or other mineral lease, 18 ALR2d 98. Right of mineral lessee to deposit topsoil, waste materials, and the like upon lessor’s additional land not being mined, 26 ALR2d 1453. Construction and effect of provision in mineral lease excusing payment of minimum rent or royalty, 28 ALR2d 1013. Liability of mine operator for damage to surface structure by removal of support, 32 ALR2d 1309. Breach of covenant for quiet enjoyment in lease, 41 ALR2d 1414.

Subletting or renting part of premises as violation of lease provision as to subletting, 56 ALR2d 1002. Expenses and taxes deductible by lessee in computing lessor’s oil and gas royalty or other return, 73 ALR2d 1056. Implied obligation of purchaser or lessee to conduct search for, or to develop or work premises for, minerals other than oil and gas, 76 ALR2d 721. Duty of lessee or assignee of mineral lease other than lease for oil and gas, as regards marketing or delivery for marketing of mineral products, 77 ALR2d 1058. Measure of damages for lessor’s breach of contract to lease or to put lessee in possession, 88 ALR2d 1024. Clay, sand, or gravel as ‘‘minerals’’ within deed, lease, or license, 95 ALR2d 843. What amounts to development or operation for oil or gas within terms of habendum clause extending primary term while the premises are being ‘‘developed or operated,’’ 96 ALR2d 322. ‘‘Shut-in royalty’’ payment provisions in oil and gas leases, 96 ALR2d 345. Liability of lessee who assigns lease for rent accruing subsequently to extension or renewal of term, 10 ALR3d 818. Construction of oil and gas lease as to the

lessee’s right and duty of geophysical or seismograph exploration or survey, 28 ALR3d 1426. Statements in promotional or explanatory literature issued by lessor to lessee as ground for relief from lease contract, 43 ALR3d 1386. Validity, construction, and application of entirety clause in oil or gas lease, 48 ALR3d 706. Grant, lease, exception, or reservation of ‘‘oil, gas, and other minerals,’’ or the like, as including coal or metallic ores, 59 ALR3d 1146. Grant, lease, exception, or reservation of oil and/or gas rights as including oil shale, 61 ALR3d 1109. Liability of lessee who refuses to take possession under executed lease or executory agreement to lease, 85 ALR3d 514. Liability for interference with lease, 96 ALR3d 862. Validity and construction of statutes providing for reversion of mineral estates for abandonment or nonuse, 16 ALR4th 1029. Implied duty of oil and gas lessee to protect against drainage, 18 ALR4th 14. Remedy for breach of implied duty of oil and gas lessee to protect against drainage, 18 ALR4th 147.