Tenant has no right to challenge a zoning decision.

- Because the usufruct granted in a tenant's lease did not convey an interest in real property, the tenant had no cognizable interest in a county zoning decision that the tenant could assert adversely to the actual property owner's interest and, therefore, lacked standing to challenge the zoning decision; nor was the tenant entitled to enforce restrictive covenants. The Stuttering Foundation, Inc. v. Glynn County, 301 Ga. 492, 801 S.E.2d 793 (2017).

Cited in A.F. Burnett & Bro. v. William Rich & Co., 45 Ga. 211 (1872); Brown v. Persons, 48 Ga. 60 (1873); Hutcheson v. Hodnett, 115 Ga. 990, 42 S.E. 422 (1902); Hearn v. Huff, 6 Ga. App. 56, 64 S.E. 298 (1909); Motor Aid, Inc. v. Ray, 53 Ga. 772, 187 S.E. 120 (1936); Johnson v. First Nat'l Bank, 53 Ga. App. 643, 187 S.E. 300 (1936); Chastain v. Gardner, 187 Ga. 462, 200 S.E. 786 (1939); Stephens v. Pickering, 192 Ga. 199, 15 S.E.2d 202 (1941); State v. Davison, 198 Ga. 27, 31 S.E.2d 225 (1944); Flynt v. Barrett, 73 Ga. App. 396, 36 S.E.2d 868 (1946); Jones v. E.I. Rooks & Son, 78 Ga. App. 790, 52 S.E.2d 580 (1949); Nunnally v. Shockley, 91 Ga. App. 767, 87 S.E.2d 115 (1955); Ray v. Ashburn Bank, 212 Ga. 37, 89 S.E.2d 889 (1955); Stephens v. Stephens, 220 Ga. 22, 136 S.E.2d 726 (1964); Henson v. Airways Serv., Inc., 220 Ga. 44, 136 S.E.2d 747 (1964); Sewell Dairy Supply Co. v. Taylor, 113 Ga. App. 729, 149 S.E.2d 540 (1966); Scarbor v. Scarbor, 226 Ga. 323, 175 S.E.2d 6 (1970); Brown v. Wood, 124 Ga. App. 500, 184 S.E.2d 661 (1971); 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); Southland Inv. Corp. v. McIntosh, 137 Ga. App. 216, 223 S.E.2d 257 (1976); Rains Inv. Co. v. George Roe & Assocs., 140 Ga. App. 566, 231 S.E.2d 460 (1976); Martin v. Heard, 239 Ga. 816, 238 S.E.2d 899 (1977); Overlin v. Boyd, 598 F.2d 423 (5th Cir. 1979); Ansley Park Plumbing & Heating Co. v. Mikart, Inc., 9 Bankr. 144 (Bankr. N.D. Ga. 1981); Clayton County Bd. of Tax Assessors v. City of Atlanta, 164 Ga. App. 864, 298 S.E.2d 544 (1982); Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983); Eastern Air Lines v. Joint City-County Bd. of Tax Assessors, 253 Ga. 18, 315 S.E.2d 890 (1984); Henderson v. Easters, 178 Ga. App. 867, 345 S.E.2d 42 (1986); Glen Oak, Inc. v. Henderson, 258 Ga. 455, 369 S.E.2d 736 (1988); Thompson v. Crownover, 259 Ga. 126, 381 S.E.2d 283 (1989); Hallisy v. Snyder, 219 Ga. App. 128, 464 S.E.2d 219 (1995); Outdoor Sys. v. Wood, 247 Ga. App. 287, 543 S.E.2d 414 (2000); Williams v. State, 261 Ga. App. 511, 583 S.E.2d 172 (2003).

Usufruct defined.

- Usufructs are rights or privileges usually arising out of landlord and tenant relationships with privileges granted to tenants holding less interest in real estate than estate for years. Roe v. Doe, 246 Ga. 138, 268 S.E.2d 901 (1980).

Usufruct is a lesser interest in real estate than is an estate for years which does not involve the landlord-tenant relationship. Searcy v. Peach County Bd. of Tax Assessors, 180 Ga. App. 531, 349 S.E.2d 515 (1986).

Tenant defined.

- Tenant is generally defined as one who occupies the lands or premises of another in subordination to that other's title, and with the other's assent, express or implied. Sharpe v. Mathews, 123 Ga. 794, 51 S.E. 706 (1905).

Tenancy at will.

- Tenant at will is in possession by right, evidenced by the will of the landlord and that of the tenant, which will is expressed by the express or implied consent of the landlord to the occupancy of the premises, concurrent with the will of the tenant to occupy the premises; the payment of rent is not essential to the creation of a tenancy at will. Carruth v. Carruth, 77 Ga. App. 131, 48 S.E.2d 387 (1948).

When the plaintiff purchased a mobile home, never signed a lease with defendants or the company which then owned the lot, and presented no evidence to support plaintiff's assertion that the property owner ever contracted for or consented to the establishment of a life estate in the property, that the prior tenant had possessed a life interest, or that plaintiff assumed a lease or a life estate when plaintiff purchased the mobile home, there was no error in finding as a matter of law that plaintiff had a tenancy at will. Gentry v. Chateau Properties, 236 Ga. App. 371, 511 S.E.2d 892 (1999).

Tenancy at will for trust beneficiary.

- Jury issues remained as to whether a trust beneficiary, who had been allowed to stay at the trust's ranch periodically without having to pay rent and without a formal lease agreement, was a tenant at will of the trust and whether, as a result, the trustees were liable for not following the dispossessory procedures of O.C.G.A. § 44-7-1(a) in removing the beneficiary and the beneficiary's property. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014).

Familial relationship between parties.

- In a wrongful death suit wherein a visiting youth of a tenant was shot and killed by a gun left loaded in the leased premises, a lease was found to have existed between the parties, who were all related to each other, despite no written lease agreement existing and the payment of rent was not regularly made. McCullough v. Reyes, 287 Ga. App. 483, 651 S.E.2d 810 (2007), cert. denied, 2008 Ga. LEXIS 178 (Ga. 2008).

Effect of lease for less than five years.

- Lease of real estate for less than five years passes no estate out of the landlord; the tenant has only a usufruct, and the tenant can neither sublet the premises, convey the tenant's usufructuary interest, nor assign the tenant's lease, without the landlord's consent. Hudson v. Stewart, 110 Ga. 37, 35 S.E. 178 (1900); DeFoor v. Stephens & Lastinger, 133 Ga. 617, 66 S.E. 786 (1909).

When a lease carries a term of less than five years and does not clearly indicate by its express terms that it passes an estate for years, the lease conveys a mere usufruct and is not assignable absent the express consent of the landlord. Splish Splash Waterslides, Inc. v. Cherokee Ins. Co., 167 Ga. App. 589, 307 S.E.2d 107 (1983).

Estate for years.

- When the term of a lease is greater than five years, a rebuttable presumption arises that an estate for years is created. In re Emory Properties, Ltd., 106 Bankr. 318 (Bankr. N.D. Ga. 1989).

Effect of lease for over five years.

- Lease of real estate for a period of five years passes such an estate from the landlord to the tenant as the landlord may convey or contract to convey to another with all the incident rights and duties of the tenancy. Robinson v. Perry, 21 Ga. 183, 68 Am. Dec. 455 (1857); Perry v. Paschal, 103 Ga. 134, 29 S.E. 703 (1897); Jones v. Fuller, 27 Ga. App. 84, 107 S.E. 544 (1921); Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933); Shell Petro. Corp. v. Stallings, 51 Ga. App. 351, 180 S.E. 654 (1935).

Circumscribed and limited use of premises are characteristic of a usufruct. Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378, 260 S.E.2d 315 (1979).

Estate for years and tenancy distinguished.

- Estate for years, when applied to realty, differs from the relation of landlord and tenant in that in the latter the tenant has no estate, but a mere right of use very similar to the right of a hirer of personalty. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723, 49 S.E.2d 779 (1948).

Tenancies at sufferance and at will distinguished.

- Tenancy at sufferance differs from a tenancy at will in this: the tenant at sufferance enters lawfully and holds over wrongfully without the landlord's assent or dissent; the tenant at will holds by the landlord's permission. It takes little to convert a tenancy at sufferance into a tenancy at will; anything that indicates the permission of the landlord for the tenant to remain in possession will have this effect. Carruth v. Carruth, 77 Ga. App. 131, 48 S.E.2d 387 (1948).

Timber conveyance distinguished from lease.

- Conveyances of timber to be removed within a certain time are distinguishable from leases because those conveyances are assignable without the consent of the grantor. Baxter v. Mattox, 106 Ga. 344, 32 S.E. 94 (1898); McRae v. Stillwell, Millen & Co., 111 Ga. 65, 36 S.E. 604, 55 L.R.A. 513 (1900); McLendon Bros. v. Finch, 2 Ga. App. 421, 58 S.E. 690 (1907).

Sale of timber on land.

- Relation between the parties to a conveyance whereby the one sells to the other the timber on land is that of vendor and vendee, and not that of landlord and tenant; and the conveyance is a deed, not a lease, although the time within which the timber is to be cut and removed is limited to less than five years. Coody v. Gress Lumber Co., 82 Ga. 793, 10 S.E. 218 (1889); Morgan v. Perkins, 94 Ga. 353, 21 S.E. 574 (1894); Baxter v. Mattox, 106 Ga. 344, 32 S.E. 94 (1898); McRae v. Stillwell, Millen & Co., 111 Ga. 65, 36 S.E. 604, 55 L.R.A. 513 (1900).

Distinction between cropper and renter.

- When an owner of land furnishes the land with supplies and other like necessaries, keeping general supervision over the farm, and agrees to pay a certain portion of the crop to the laborer for the laborer's work, the laborer is a cropper, and judgments or liens cannot sell the laborer's part of the crop until the landlord is fully paid; but if there is a renting, and the relation of landlord and tenant exists, an older judgment will subject the renter's crop, although the landlord may have a parol contract with the tenant by which it is stipulated that the crop is to be the landlord's until the debt for supplies is paid. Almand v. Scott, 80 Ga. 95, 4 S.E. 892, 12 Am. St. R. 241 (1887).

When a tenant retained control and direction of the farm, and croppers worked the farm under this direction and were to receive a part of the crop as wages for their labor, the relation between them and the tenant was not that of landlord and tenant, but of master and servant; but if the tenant made an additional and separate contract with one of the croppers, by which it was agreed that the cropper was to pay $60.00 for a crop which had been begun and abandoned by another, work it and give the tenant half, the remaining half to be bound for the $60.00, this cropper became a renter of the land occupied by that crop, and the title to the crop raised on it was in the cropper. Bryant v. Pugh, 86 Ga. 525, 12 S.E. 927 (1891).

Unsigned lease.

- When a two-year lease is not signed by the lessor, even though signed by the lessee in possession, it is inoperative as such. Lewis v. Floyd, 126 Ga. App. 520, 191 S.E.2d 291 (1972).

Lease to begin in future.

- Fact that the beginning of the term of the lease was postponed until the time the United States government ceased to use the airport would not render the agreement invalid; a valid lease, the term of which is to begin in the future, may be made. Southern Airways Co. v. De Kalb County, 216 Ga. 358, 116 S.E.2d 602 (1960).

Limitations not creating usufruct.

- 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 the contract's 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).

Parties intended by restrictions to create a usufruct when the agreement completely restricted assignment of the lease without lessor's written consent; the agreement limited the lessees' rights in the property to cultivation matters, specifically excluding lessees from exercising mineral rights and "other rights of every kind and nature;" and the agreement required lessees to maintain the property in the "usual high standard of care, cultivation and fertilization" practiced by lessees on their own land and required lessees to clear the land and leave it in good cultivatable condition suitable for grain or row-crop cultivation upon termination of the lease. Therefore, lessors, not lessees, was subject to ad valorem taxation on the property. Searcy v. Peach County Bd. of Tax Assessors, 180 Ga. App. 531, 349 S.E.2d 515 (1986).

Effect of restrictions upon lease.

- Certain restrictions imposed upon use of the premises under a lease can be so pervasive as to be fundamentally inconsistent with the concept of an estate for years. Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378, 260 S.E.2d 315 (1979).

Contract of purchase.

- When the owner of land puts another in possession thereof under a parol contract to allow the latter to purchase the land at a given price and pay for the land in annual installments, but on condition that if the other was not able to pay for the land the other should pay as rent for the same each year the other occupied the land 10 percent of the price agreed upon and the taxes on the land, and the occupant of the land failed for two years to make any payment to the owner, either as purchase money or as rent, the relation of landlord and tenant existed between the parties as to the second year's occupation. Reddick & Webster v. Hutchinson, 94 Ga. 675, 21 S.E. 712 (1894).

Crop adjustment program.

- Under the crop adjustment program, the federal government acquires no right to possession, no usufruct; it 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. Georgia Power Co. v. Fletcher, 113 Ga. App. 559, 148 S.E.2d 915 (1966).

Contract to manage property.

- Intent of the parties was that Southern Airways simply contracted with the county to manage and operate the county's airport, as its agent, for public and governmental purposes, and whether the contract between the parties be called a lease, a license, a franchise or a contract of agency or management, it was the intention of the parties that Southern Airways would not obtain any interest in the real estate described in the contract, but only a circumscribed and limited use of the airport facilities. The reserved rights of the lessor as to the control, improvement, inspection, and supervision of the premises with the right of others to use the facilities, negate any contention that the lessee would have the exclusive possession and control of the premises. Southern Airways Co. v. De Kalb County, 216 Ga. 358, 116 S.E.2d 602 (1960).

Assignees who rented a portion of an airplane hangar from a lessee of the premises were trespassers who were not entitled to notice to vacate since there was no evidence indicating a consent or election on the part of the landlords to accept the assignees as tenants. Block v. Brown, 199 Ga. App. 127, 404 S.E.2d 288, cert. denied, 199 Ga. App. 905, 404 S.E.2d 288 (1991).

Conveyance of room for stipulated sum.

- Conveyance of a room for a stipulated sum to be kept as a first class bar room is clearly not a mere contract of writing, so as to give the tenant only an usufruct, which cannot be conveyed to another without consent of the landlord. Such a conveyance creates an estate for years. Clark v. Herring & Mock, 43 Ga. 226 (1871).

Furnished room on week-to-week term.

- Fact that bedroom and bath were rented furnished in a building containing other rooms and the term was on a week-to-week basis does not affirmatively show that landlord-tenant relationship alleged by plaintiff did not exist so as to change the duty owed by the defendant to the plaintiff from that of landlord to tenant to innkeeper and guest. Garner v. La Marr, 88 Ga. App. 364, 76 S.E.2d 721 (1953).

Lease of transportation privileges.

- When complainants "rented and farmed out" all the transportation privileges of the defendant for 99 years, complainants did not take an estate for years, but came within the provisions of this statute, and became tenants having the mere right of possession and use with no interest in the property which was taxable, all estate therein subject to taxation remaining in the lessor. Louisville & N.R.R. v. Wright, 199 F. 454 (N.D. Ga. 1912), aff'd, 201 F. 1023 (5th Cir. 1913), modified, 236 U.S. 687, 35 S. Ct. 475, 59 L. Ed. 788 (1915).

Lessor's inherent right to terminate lease.

- When the lessee's failure to maintain the farm in a reasonable manner was found by the jury to amount to such a breach of the lease in a matter so substantial and fundamental as to defeat the object of the lease, the lessor retains the inherent right to rescind or terminate the lease even in the absence of an express provision in the lease. Nunn v. Taylor, 177 Ga. App. 44, 338 S.E.2d 453 (1985).

Use of land.

- When there is a sale or contract of sale of title, the relation of landlord and tenant does not exist, but it exists only when the use of the land either for a specified time or at will, is granted. Allread v. Harris, 75 Ga. 687 (1885).

Possession and enjoyment.

- When the owner of the land granted to the defendant the right to possess and enjoy the use of such land, and the grant was accepted, the relation of landlord and tenant arose between them. Taylor v. Coney, Lovejoy & Co., 101 Ga. 655, 28 S.E. 974 (1897).

Specified time and price.

- When the owner of land rent is to one person for the year at a specified price, the relation of landlord and tenant exists between them by contract. Willingham v. Faircloth, 52 Ga. 126 (1874).

Agreement to pay rent.

- Agreement to pay rent creates the relation of landlord and tenant. In re O'Dowd, 18 F. Cas. 593 (S.D. Ga. 1873) (No. 10, 439).

Payment of rent is not essential to the creation of a tenancy at will. May v. May, 165 Ga. App. 461, 300 S.E.2d 215 (1983).

Contract for land for stipulated rent for five years created the relation of landlord and tenant. Napier v. Varner, 149 Ga. 586, 101 S.E. 580 (1919).

Acceptance by tenant of terms of contract.

- Before the relation of landlord and tenant exists, the tenant must accept the grant or enter the premises under the terms of the contract, and not in some other relationship or capacity. Edwards v. Gulf Oil Corp., 71 Ga. App. 649, 31 S.E.2d 677 (1944).

Taking possession not necessary.

- Fact that the tenant did not at any time occupy the premises has no effect on the landlord-tenant relationship. Hudson v. Stewart, 110 Ga. 37, 35 S.E. 178 (1900).

Relationship created by parol.

- When the defendant, under the parol contract, took possession of the rented premises, the relation of landlord and tenant was established between the plaintiffs and the defendant. Nicholes v. Swift, 118 Ga. 922, 45 S.E. 708 (1903).

Oral agreement and no rent sufficient to create relationship.

- In a trust beneficiary's action for wrongful eviction from trust property against the trustee, the trial court erred in finding there was no landlord-tenant relationship between the trust and the beneficiary as no rent was paid and there was no lease because all that was required was an oral agreement for use of the premises. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014).

Joint possession and use.

- When a railroad company, by contract express or implied, admits another company into the possession, use and occupation, jointly with itself, of the railroad's depot, yards, yardtracks, and other terminal facilities, the relation of landlord and tenant is established between the two companies and continues, if no term be fixed by contract, so long as such joint possession, use, and occupation may last. Rome R.R. v. Chattanooga, R. & C.R.R., 94 Ga. 422, 21 S.E. 69 (1894).

Terms creating usufruct.

- When the terms of the lease stated: "This contract shall create the relationship of landlord and tenant between lessor and lessee, and no estate shall pass out of the lessor; the said lease is not subject to levy and sale and not assignable by lessee except by lessor's consent," only a usufruct was granted to the original lessee. Stevenson v. Allen, 94 Ga. App. 123, 93 S.E.2d 794 (1956).

Lease between port authority and warehouse company of warehouse property created a usufruct, rather than an estate for years, since the authority retained dominion or control over the leased property, and the warehouse company was required to keep and maintain the premises, and was prohibited from assigning or permitting any part of the subject property to be used by others without the authority's written consent. Richmond County Bd. of Tax Assessors v. Richmond Bonded Whse. Corp., 173 Ga. App. 278, 325 S.E.2d 891 (1985).

Landlord need not be owner.

- It is not essential to the establishment of the relationship of landlord and tenant that the landlord be the owner of the premises. Pugh v. Middlebrooks, 47 Ga. App. 528, 171 S.E. 160 (1933), cert. dismissed, 179 Ga. 64, 175 S.E. 16 (1934).

No premises liability.

- Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a grandmother of an adult grandson who shot and killed his girlfriend as there was no showing that the grandmother had any duty to supervise the grandson, nor did the grandmother own the premises where the shooting occurred, such that a claim of premises liability could not stand under O.C.G.A. § 44-7-1(a); summary judgment to the mother of the adult son was also proper on the negligent supervision claim as the mother only had a duty to supervise the son, who was out on bond, during the mother's non-working hours, and the son committed the killing during the mother's work hours. Spivey v. Hembree, 268 Ga. App. 485, 602 S.E.2d 246 (2004).

Relationship of landlord and tenant may be for any length of time fixed by agreement. Garner v. La Marr, 88 Ga. App. 364, 76 S.E.2d 721 (1953).

There is a rebuttable presumption that a lease for five years or more is a taxable estate for years, but, whether an estate in the land passes to the tenant, or the tenant obtains merely the usufruct, depends upon the intention of the parties, and this is true without regard to the length of the term. A company's 50-year lease from a city recreational authority was a usufruct since the provisions of the parties' lease showed that the authority retained dominion and control over the property and that the company took only a circumscribed and limited use of the premises. Diversified Golf, LLC v. Hart County Bd. of Tax Assessors, 267 Ga. App. 8, 598 S.E.2d 791 (2004).

Whether an estate in the land passes to the tenant, or the tenant merely obtains a usufruct depends upon the intention of the parties; and this is true without regard to the length of the term. Macon-Bibb County Bd. of Tax Assessors v. Atlantic S.E. Airlines, 262 Ga. 119, 414 S.E.2d 635 (1992).

Lease as sale.

- 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).

Usufruct not taxable estate.

- Usufruct is not considered to be a taxable estate because the fee estate in the property remains with the lessor and is undisturbed by the agreement for the lessee to use the property. Camp v. Delta Air Lines, 232 Ga. 37, 205 S.E.2d 194 (1974); Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378, 260 S.E.2d 315 (1979).

Usufruct not subject to levy and sale.

- Usufruct is not subject to levy and sale. Boone v. Sirrine, 38 Ga. 121 (1868); Harms v. Entelman, 21 Ga. App. 295, 94 S.E. 276 (1917).

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 may be 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).

Each partner liable to landlord.

- When the relationship exists between landlord and copartners as tenants, the owner of the land would have been entitled to look to each of the parties for the preservation of the party's property and payment of the rents. Boone v. Sirrine, 38 Ga. 121 (1868); Kraft v. Hendry, 150 Ga. 155, 103 S.E. 169 (1920).

Promise of payment is consideration.

- Payment or promise of payment of stipulated rentals alone constitutes a valid consideration for a lease, without the necessity for any other consideration from the lessee. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351, 180 S.E. 654 (1935).

Agent is not landlord.

- While one may be a landlord without being the owner of the premises, yet the agent of the landlord to collect rents and who agrees and assumes the duty of making repairs does not become the landlord of the tenant, and no recovery can be had against such agent as landlord. Sanders v. A.T. Holt Co., 76 Ga. App. 279, 45 S.E.2d 480 (1947).

Effect of holding over.

- When after the expiration of a lease for 20 years, the tenants held over another year without objection on the part of the landlord, the holding over did not entitle the tenants to another 20 years tenancy but constituted them tenants at sufferance. Sutton v. Hiram Lodge, 83 Ga. 770, 10 S.E. 585, 6 L.R.A. 703 (1889).

Damages for wrongful holding over.

- When the owner of land conveys the land for such term of years as to convey an estate for years in that land, the holder of such estate may, if entitled to possession under such 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).

Presumptions as to usufruct or estate for years.

- 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); Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378, 260 S.E.2d 315 (1979).

Presumption of estate for years not conclusive.

- Although there may be a presumption that a lease for five years or more conveys an estate for years, this fact alone does not conclusively show that an estate for years was created in the lessee and that the relation of landlord and tenant did not exist between the parties. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723, 49 S.E.2d 779 (1948).

Presumption of continued possession under lease.

- If it is proved that one alleged to be a tenant entered the premises originally under the lease, in the absence of any other evidence to the contrary, there is a presumption that one's continued possession was under the lease, since such possession is consistent with the terms of the lease. Edwards v. Gulf Oil Corp., 71 Ga. App. 649, 31 S.E.2d 677 (1944).

Description of property conveyed.

- Description will not be declared void for uncertainty if the description furnishes the key to identification of the property conveyed. Roe v. Doe, 246 Ga. 138, 268 S.E.2d 901 (1980).

Agreement held to create usufruct.

- Agreement created a usufruct, rather than an estate for years, despite provision that "it is the intent of the parties to create a leasehold estate . . . and not a mere usufruct" since the initial term was for seven months, but provided for automatic renewals for ten consecutive one-year periods, provided the program was funded by the General Assembly, and the lessor was responsible for all insurance, taxes, and upkeep of the premises, including maintenance and repairs. Huntingdon II, Ltd. v. Chatham County Bd. of Tax Assessors, 207 Ga. App. 466, 428 S.E.2d 605 (1993).

Subletting defined.

- "Subletting" is a leasing by the lessee of a whole or a part of the premises during a portion of the unexpired balance of one's term. Georgia Power Co. v. Fletcher, 113 Ga. App. 559, 148 S.E.2d 915 (1966).

At common law, a tenant had the right to assign the tenant's his lease, but the tenant could not substitute another paymaster in the tenant's stead, without the consent and acceptance of the landlord. Garner v. Byard, 23 Ga. 289, 68 Am. Dec. 527 (1857).

Modification of common law.

- Statute changed the common law power of the tenant to sublet for at common law the tenant could assign the tenant's interests. Garner v. Byard, 23 Ga. 289, 68 Am. Dec. 527 (1857) (see O.C.G.A. § 44-7-1).

Subletting prohibited.

- When the landlord rents land and tenements to another for a fixed time, or at the will of the landlord, the tenant has only a usufruct in the premises, which the tenant cannot convey to another, except by the landlord's consent. Sealy v. Kuttner, 41 Ga. 594 (1871); Hooper, Hough & Force v. Dwinnell, 48 Ga. 442 (1873); McLendon Bros. v. Finch, 2 Ga. App. 421, 58 S.E. 690 (1907); Butts Bros. v. Ennis, 148 Ga. 153, 96 S.E. 131 (1918).

Assignment of lease for years.

- When, in consideration of the grant of a leasehold estate in realty, the lessee agrees for the lessee and assigns to pay a stipulated yearly rental to the lessor, and thereafter conveys and assigns the lessee's entire unexpired leasehold to a third person, the effect of the instrument is to establish a privity of estate between the assignee and the original lessor, and to authorize the latter to hold the former liable upon covenants running with the land, such as the payment of the yearly rental while the leasehold estate remains vested in the assignee, but the rule is to the contrary when property is leased for a period of less than five years, so as not to constitute a leasehold estate. Dunlap v. George, 48 Ga. App. 341, 172 S.E. 657 (1934).

Consent of lessor to assignment not necessary.

- Even though a lessee cannot by an assignment of a lease of five years or more, or by a sublease thereunder, free oneself from the obligations of the lease without the consent of the lessor, such consent is not necessary to the validity of the sublease. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351, 180 S.E. 654 (1935).

Effect of attempted transfer.

- Lessee cannot, without the consent of the landlord, transfer the lessee's lease; the transferee in such a case would be a mere intruder and subject to be summarily ousted by the landlord. Bass v. West, 110 Ga. 698, 36 S.E. 244 (1900).

Landlord's permission constitutes right to sublet.

- Tenant can sublet only with the landlord's consent, and the terms and conditions of the subtenant's right to possess and enjoy the use of the demised property must be found in the landlord's permission. Dodd v. Ozburn, 128 Ga. 380, 57 S.E. 701 (1907).

Refusal to consent as rescission.

- Refusal on the part of the landlord to consent to tenant's subletting the premises does not constitute a rescission of the lease agreement between the tenant and the landlord if no provision is made for subletting by the tenant. Jenkins v. Smith, 92 Ga. App. 296, 88 S.E.2d 533 (1955).

Landlord's reasonableness in considering sublet implied.

- Even if a lease does not contain a clause requiring reasonableness on the part of a landlord in the denial of a sublease, such a provision will be implied. Stern's Gallery of Gifts, Inc. v. Corporate Property Investors, Inc., 176 Ga. App. 586, 337 S.E.2d 29 (1985).

Landlord's acceptance of subtenant.

- If a tenant, without consent, undertakes to assign or transfer such lease to another person, the landlord may, by affirmative action, elect to treat such unauthorized transferee as one's own tenant, and thereby establish between them the relation of landlord and tenant according to the terms of the original lease. McBurney v. McIntyre, 38 Ga. 261 (1868); McConnell v. East Point Land Co., 100 Ga. 129, 28 S.E. 80 (1897); Lawson v. Haygood, 202 Ga. 501, 43 S.E.2d 649 (1947); Estralita Lamps, Inc. v. Marietta Indus. Ass'n, 80 Ga. App. 196, 55 S.E.2d 822 (1949).

In the event of an unauthorized transfer or assignment of a lease, the landlord may by affirmative action elect to substitute the transferee or assignee for the original tenant. The landlord's election to recognize an unauthorized subtenant as the landlord's tenant may be effected by an expressed recognition, or the election may be implied from such affirmative acts and conduct as will clearly indicate an intention on the part of the landlord to effect such a substitution. Splish Splash Waterslides, Inc. v. Cherokee Ins. Co., 167 Ga. App. 589, 307 S.E.2d 107 (1983).

Affirmative act by landlord.

- In order for the relation of landlord and tenant to exist between the owner of the property and a subtenant, some affirmative action must be had by the landlord showing that the landlord elected to treat the subtenant as the landlord's tenant. Hudson v. Stewart, 110 Ga. 37, 35 S.E. 178 (1900), later appeal, Liberty Loan Corp. v. Leftwich, 115 Ga. App. 113, 153 S.E.2d 596 (1967); 116 Ga. App. 799, 159 S.E.2d 142 (1967); 118 Ga. App. 383, 163 S.E.2d 837 (1968); Ihlanfeldt v. Courtney, 132 Ga. App. 155, 207 S.E.2d 653 (1974).

Relationship of subtenant to landlord.

- Subtenant becomes the tenant of the landlord, if the landlord elects to recognize the subtenant as such, and the landlord may proceed against the subtenant for holding over; or the landlord may refuse to recognize the tenancy and proceed to expel the person placed upon the premises by the tenant as an intruder, in any manner prescribed by law for the expulsion of trespassers or intruders. McBurney v. McIntyre, 38 Ga. 261 (1868).

Landlord's mere failure to object and the landlord's acceptance of payment of the rent from the subtenant, without more, are not together sufficient to constitute an election by the landlord to accept the subtenant as the landlord's immediate tenant. Liberty Loan Corp. v. Leftwich, 115 Ga. App. 113, 153 S.E.2d 596 (1967); 116 Ga. App. 799, 159 S.E.2d 142 (1967), later appeal, 118 Ga. App. 383, 163 S.E.2d 837 (1968).

Question for jury.

- Since a 20-year lease stipulated that the tenant received only a usufruct and expressly prohibited the assignment of the interest or the subletting of the premises without the landlord's prior written consent, but a subtenant was in possession with the landlord's knowledge for approximately seven months before the landlord entered into an agreement with the tenant to terminate the lease, these facts, while not alone sufficient to find that the landlord accepted the subtenant as the landlord's tenant, and could not terminate the underlying lease with the subtenant's consent, raised a jury question. Step Ahead, Inc. v. Lehndorff Greenbriar, Ltd., 171 Ga. App. 805, 321 S.E.2d 115 (1984).

Tenant may protect interests in property.

- Tenant, although the tenant has no estate in the land, is the owner of the land's use for the term of the tenant's rent contract, and can recover damages for any injury to such use occasioned by a public nuisance. Bentley v. City of Atlanta, 92 Ga. 623, 18 S.E. 1013 (1893).

Due process right of lessee.

- Holder of a valid rent contract for realty, though it be for a period of less than five years, has a property right in the leased premises which is protected by the constitutional provision declaring that private property cannot be taken or damaged, for a public use, without first paying just and adequate compensation for the property. Waters v. DeKalb County, 208 Ga. 741, 69 S.E.2d 274 (1952).

Tenancy not part of tenant's assets.

- When the tenancy of the storehouse occupied by the assignors was by the year, they had no estate in it, and therefore it could not have been a part of their assets. Stultz & Blair v. Fleming & Bussey, 83 Ga. 14, 9 S.E. 1067 (1889).

Lessee's right to possess and enjoy.

- 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. Georgia Power Co. v. Fletcher, 113 Ga. App. 559, 148 S.E.2d 915 (1966).

Lessee's right to possession.

- When the owner of lands does not convey the title or an estate therein but gives the lessees only the usufruct, such 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 the tenant rented the premises, but the lessees must look to the owner to place the lessees in possession of the premises and may maintain an action for damages against the owner for a refusal or failure to do so. Baxley v. Davenport, 75 Ga. App. 659, 44 S.E.2d 388 (1947).

Because the evidence presented at trial made it clear that a lessor conveyed no ownership interest to a tenant, leaving that tenant with only a right to possess and use the leased property, and more specifically, a usufruct, the tenant did not own an interest in the property, and thus could not pursue an easement by necessity under O.C.G.A. § 44-9-40; hence, summary judgment in the lessor's favor as to this issue was upheld on appeal. Read v. Ga. Power Co., 283 Ga. App. 451, 641 S.E.2d 680 (2007).

Landlord's failure to repair latent defect.

- Responsibility of a landlord for failure to repair a latent defect in the premises before leasing the premises is predicable only on the landlord's knowledge of the defect and the consequent necessity for repairs; this knowledge may be constructive as well as actual. Accordingly, if by the exercise of ordinary care in the performance of one's obligation to keep the premises in repair, one ought to have known of a latent defect therein, one is answerable in damages to the tenant, or to one entering under the authority of the tenant, for personal injuries sustained by reason of such defect. Elijah A. Brown Co. v. Wilson, 191 Ga. 750, 13 S.E.2d 779 (1941).

Tenant severing trees.

- Tenant of farm lands has no right to sever trees thereon for the purpose of sale, and when the tenant does so, animus furandi, the tenant is guilty of larceny and not larceny after trust. Higgins v. State, 58 Ga. App. 480, 199 S.E. 158 (1938).

Liability of subtenant to tenant.

- One who rents land and sublets the land to a third person stands in the relation of landlord to the subtenant and may have a distress warrant for the rent. Harrison v. Guill, 46 Ga. 427 (1872).

Existing condition as constructive eviction.

- Tenant was precluded by lease from claiming that the tenant was constructively evicted by a condition that existed at the time the tenant signed the lease. Snipes v. Halpern Enters., Inc., 160 Ga. App. 207, 286 S.E.2d 511 (1981).

Defense based on fraud prohibited if lease contains stipulation regarding entire agreement.

- Tenants who sign a lease containing a stipulation regarding the "entire agreement," when sued for the rent thereunder, cannot defend on the grounds of fraudulent representations as to the condition of the premises. Snipes v. Halpern Enters., Inc., 160 Ga. App. 207, 286 S.E.2d 511 (1981).

Lienor.

- When the owner of property encumbered the property with a security deed and a contractor's lien, and thereafter leased a portion of the property to a third person for a term of years, the lessee had a right to enjoy the property for the term of the lease, and the holders of the liens will be compelled to sell such property in such a manner as not capriciously, unnecessarily, and unjustly to interfere with such leasehold interest. Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229, 114 S.E. 36 (1922).

Transferee.

- If one has a leasehold estate and a right to assign it, and makes to another a lease covering one's whole term, it will be treated as an assignment relative to the landlord so as to establish a privity between the transferee and the landlord, and to authorize the latter to hold the former upon covenants running with the land. But, as between the original lessee and the sublessee, even though the former demise one's whole term, if the parties intend a lease, the relation of landlord and tenant, at least as to all but strictly reversionary rights, will arise. Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451, 69 S.E. 734 (1910).

Trustee in bankruptcy.

- Trustee in bankruptcy of a lessee has only the same rights and interest that the tenant has under the contract of lease, and cannot enforce a different contract. The lessee could not assign the lease without the consent of the lessee's landlord, and neither could the trustee in bankruptcy. Cox v. Howell, 37 Ga. App. 596, 141 S.E. 82, cert. denied, 37 Ga. App. 833 (1928).

Effect of transfer to trustee in bankruptcy.

- When a lease to a bankrupt for five years, though containing a covenant against assignment and subletting, did not expressly prohibit such transfer nor provide for termination on the transfer of the lessee's interest by bankruptcy proceedings, such a transfer to the lessee's trustee in bankruptcy was an act of the law and did not terminate the lease, especially under this statute inferentially providing that a lease for five years confers a legal estate on the lessee. Nelson v. Denmark (In re Gutman), 197 F. 472 (S.D. Ga. 1912) (see O.C.G.A. § 44-7-1).

Partner.

- Lessee's association of a third person with the lessee as a partner is not an assignment of the lease. The incoming partner may not have a legal interest in the lease, because it was not formally assigned to that partner by the tenant with the landlord's consent; but as the partner was on the premises engaged in the business with the landlord's tenant, with the landlord's knowledge and consent, the partner was not a trespasser. The partner was at least a licensee whose rights as such the landlord was bound to respect. DeFoor v. Stephens & Lastinger, 133 Ga. 617, 66 S.E. 786 (1909).

Effect of covenant to renew on purchaser.

- As against a purchaser from the landlord, with notice, the covenant on the part of the lessor to renew is a covenant real, the burden of which rests with the reversion, and may therefore be enforced against the grantee of the reversion. Parker v. Gortatowsky, 127 Ga. 560, 56 S.E. 846 (1907).

Oral lease.

- One may make a valid oral lease agreement for a period of one year or less and be bound by the agreed terms thereof just as in a written contract although one may be somewhat handicapped in presenting evidence as to the terms of the agreement. 1967 Op. Att'y Gen. No. 67-59.

Lease subject to ad valorem taxation.

- Lease of real property conveying an interest therein is subject to ad valorem taxation. 1969 Op. Att'y Gen. No. 69-482.

City holding usufruct is not owner.

- When city holds a mere usufruct, terminable on six months' notice, which cannot be levied upon or sold, city has only the limited rights of possession and use, and no estate has passed to the city; therefore, the property is not publicly owned and is not subject to the provisions of § 4 (f) of the Department of Transportation Act of 1966. 1976 Op. Att'y Gen. No. 76-49.

Am. Jur. 2d.

- 49 Am. Jur. 2d, Landlord and Tenant, § 1.

16A Am. Jur. Pleading and Practice Forms, Landlord and Tenant, § 4.

C.J.S.

- 51C C.J.S., Landlord and Tenant, § 4.

ALR.

- Fraud, misrepresentation, or mistake as affecting estoppel of tenant to deny landlord's title, 2 A.L.R. 359.

Right of tenant to treat interference with his possession as an eviction and recover damages for loss of unexpired term, 7 A.L.R. 1103.

Rights and remedies of tenant who remains in possession of all or part of the premises against landlord for interfering with his possession or enjoyment, 20 A.L.R. 1369; 28 A.L.R. 1333; 64 A.L.R. 900.

Parol-evidence rule as applied to lease, 25 A.L.R. 787; 88 A.L.R. 1380; 151 A.L.R. 279.

Effect of nonhabitability of leased dwelling or apartment, 29 A.L.R. 52; 34 A.L.R. 711.

Acts of insurance company or public authorities to protect property after fire as constructive eviction of tenant, 29 A.L.R. 1361.

Landlord's consent to one assignment or sublease as obviating necessity of consent to subsequent assignment or sublease, 31 A.L.R. 153; 32 A.L.R. 1080.

Status and rights of one renting room in club, 32 A.L.R. 1016.

Rights of lessee who relets for entire term as against sublessee or person claiming under latter, 32 A.L.R. 1429.

Construction of provision for termination of lease in event of sale of property, 35 A.L.R. 518; 116 A.L.R. 931; 163 A.L.R. 1019.

Nature of occupancy of person occupying premises of employer as part of compensation, 39 A.L.R. 1145.

Forfeiture of lease by act of subtenant, 49 A.L.R. 830.

Surrender and acceptance of term as affecting right to recover rent or on obligation given for rent, 58 A.L.R. 906.

What is objectionable purpose within provision of lease against assigning or subletting for objectionable purpose, 61 A.L.R. 708.

Special assessments as within provisions of a lease requiring lessee to pay "taxes," "taxes and assessments," as variations, 63 A.L.R. 1391.

Rights and remedies of assignee or sublessee as against assignor or sublessor who misrepresents facts regarding lessor's consent, 78 A.L.R. 356.

Landlord's acceptance of chattel mortgage, or conditional sales contract, as waiver of landlord's lien or reservation of title, 96 A.L.R. 568.

Rights as between the landlord and conditional seller of property to tenant, 98 A.L.R. 628.

Status as licensee or lessee of one in occupation of land in anticipation of the making or execution of a lease, 123 A.L.R. 700.

Validity and effect of acceleration clause in lease or bailment, 128 A.L.R. 750.

Lease or tenancy agreement as creating partnership relationship between lessor and lessee, 131 A.L.R. 508.

Construction and application of provisions as to assignment by "tenant-owner" in "co-operative" apartment house plan, 141 A.L.R. 1162.

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679.

Sublease or assignment of tenancy at will, 167 A.L.R. 1040.

Character and duration of tenancy created by entry under invalid or unenforceable lease, 6 A.L.R.2d 685.

Enforceability of option to purchase, consideration for which is payment of rentals exceeding rent control law maximum, 28 A.L.R.2d 1204.

Covenant in lease to arbitrate, or to submit to appraisal, as running with the leasehold so as to bind assignee, 81 A.L.R.2d 804.

Construction and effect of provision in lease that consent to subletting or assignment will not be arbitrarily or unreasonably withheld, 54 A.L.R.3d 679.

Grazing or pasturage agreement as violative of covenant in lease or provision of statute against assigning or subletting without lessor's consent, 71 A.L.R.3d 780.

Recovery of expected profits lost by lessor's breach of lease preventing or delaying operation of new business, 92 A.L.R.3d 1286.

Farmland cultivation arrangement as creating status of landlord-tenant or landowner-cropper, 95 A.L.R.3d 1013.

Implied covenant or obligation to provide lessee with actual possession, 96 A.L.R.3d 1155.

Right to exercise option to renew or extend lease as affected by tenant's breach of other covenants or condition, 23 A.L.R.4th 908.

Children's day-care use as violation of restrictive covenant, 29 A.L.R.4th 730.

Sufficiency as to method of giving oral or written notice exercising option to renew or extend lease, 29 A.L.R.4th 903.

What constitutes timely notice of exercise of option to renew or extend lease, 29 A.L.R.4th 956.

Waiver or estoppel as to notice requirement for exercising option to renew or extend lease, 32 A.L.R.4th 452.

Sufficiency as to parties giving or receiving notice of exercise of option to renew or extend lease, 34 A.L.R.4th 857.

Express or implied restriction on lessee's use of residential property for business purposes, 46 A.L.R.4th 496.

Implied warranty of fitness or suitability in commercial leases - modern status, 76 A.L.R.4th 928.

What constitutes abandonment of residential or commercial lease - modern cases, 84 A.L.R.4th 183.

Landlord's permitting third party to occupy premises rent-free as acceptance of tenant's surrender of premises, 18 A.L.R.5th 437.

Effect, as between landlord and tenant, of lease clause restricting the keeping of pets, 114 A.L.R.5th 443.