O.C.G.A. § 9-3-30 (2019)

Annotations

Cross references. Injuries to real estate generally, § 51-9-1 et seq. Code Commission notes. Pursuant to Code Section 28-9-5, in 2000, “March 28, 2000” was substituted for “the effective date of this subsection” in two places in paragraph (b)(2). Law reviews. For comment on Wellerton Co. v. Sam N. Hodges, Jr. & Co., 114 Ga. App. 429, 151 S.E.2d 481 (1966), see 5 Ga. St. B.J. 169 (1968). For article surveying Georgia cases dealing with the environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978).

For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For note, “The Effect of Georgia’s Architectural Statutes of Limitations on Real and Personal Property Claims for Negligent Construction,” see 7 Ga. St. U.L. Rev. 137 (1990). For article, “Commercial Law,” see 53 Mercer L. Rev. 153 (2001). For article, “Construction Law,” see 53 Mercer L. Rev. 173 (2001). For article, “Torts,” see 53 Mercer L. Rev. 441 (2001). For survey article on tort law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 425 (2003). For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For article, “Construction Law,” see 70 Mercer L. Rev. 51 (2018).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION TRANSFER OF PROPERTY CONSTRUCTION OTHER EXAMPLES General Consideration Effect of O.C.G.A. § 9-3-51. - O.C.G.A. § 9-3-51 does not establish a new eight-year statute of limitation in place of the four-year statute that applies under O.C.G.A. § 9-3-30. Howard v. Mc-

Farland, 237 Ga. App. 483, 515 S.E.2d 629. This section is plainly in derogation of common law and, under the well-established rules, must be given a strict construction. State Farm Fire &

General Consideration (Cont’d) Cas. Co. v. Southern Bell Tel. & Tel. Co., 245 Ga. 5, 262 S.E.2d 895, 1980 Ga. LEXIS 663 (1980). Construction with O.C.G.A. § 9-351. - O.C.G.A. § 9-3-51, establishing an outside time limit which commences upon substantial completion of an improvement to property, is a statute of ultimate repose and does not extend the limitation period of O.C.G.A. § 9-3-30. Armstrong v. Royal Lakes Assocs., 232 Ga. App. 643, 502 S.E.2d 758. “Discovery rule” is inapplicable. - Discovery rule did not toll the statute of limitations in an action to recover the cost of removing asbestos, since the asbestos had been applied in 1969 and 1970, but was not discovered until 1984. St. Joseph Hosp. v. Celotex Corp., 874 F.2d 764, 1989 U.S. App. LEXIS 7894 (11th Cir. 1989), cert. denied, 493 U.S. 1081, 110 S. Ct. 1138, 107 L. Ed. 2d 1043, 1990 U.S. LEXIS 730 (1990). Discovery rule no longer applies to suits merely for real property damage; this is true whether a statute of repose exists. Hanna v. McWilliams, 213 Ga. App. 648, 446 S.E.2d 741, 1994 Ga. App. LEXIS 762 (1994); Moore v. Meeks, 225 Ga. App. 287, 483 S.E.2d 383. Four-year statute of limitations did not begin to run when the plaintiff discovered contamination of property because Georgia does not have a “discovery rule” as used in federal law. 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). Action under the statute must be brought within four years of substantial completion of a house, notwithstanding the fact that the plaintiff might have had no knowledge of any alleged defects until after the substantial completion of the house. Mitchell v. Contractors Specialty Supply, Inc., 247 Ga. App. 628, 544 S.E.2d 533, 2001 Ga. App. LEXIS 67 (2001), cert. denied, No. S01C0734, 2001 Ga. LEXIS 511 (Ga. June 11, 2001). Discovery rule does not apply to property damage claims. Andel v. Getz

Servs., Inc., 197 Ga. App. 653, 399 S.E.2d 226, 1990 Ga. App. LEXIS 1441 (1990). Application to bodily injury claims. - Discovery rule of King v. Seitzingers, Inc., 160 Ga. App. 318, 287 S.E.2d 252 (1981), is confined to cases of bodily injury which develop only over an extended period of time. An action under O.C.G.A. § 9-3-30 must be brought within four years of substantial completion. Corporation of Mercer Univ. v. National Gypsum Co., 258 Ga. 365, 368 S.E.2d 732, 1988 Ga. LEXIS 244 (1988), cert. denied, Corporation of Mercer University v. United States Gypsum Co., 493 U.S. 965, 110 S. Ct. 408, 107 L. Ed. 2d 374, 1989 U.S. LEXIS 5376 (1989); Armstrong v. Royal Lakes Assocs., 232 Ga. App. 643, 502 S.E.2d 758. Tolling of a period of limitation by the discovery rule is confined to cases involving bodily harm. Fort Oglethorpe Assocs. II v. Hails Constr. Co., 196 Ga. App. 663, 396 S.E.2d 585, 1990 Ga. App. LEXIS 1011 (1990), cert. denied, No. S90C1669, 1990 Ga. LEXIS 552 (Ga. Oct. 4, 1990). This section does not preclude recovery for any damages save those which were suffered more than four years prior to filing of action. Cox v. Cambridge Square Towne Houses, Inc., 239 Ga. 127, 236 S.E.2d 73, 1977 Ga. LEXIS 836 (1977). Grant of injunctive relief against continuing trespass is not precluded by this section. Cox v. Cambridge Square Towne Houses, Inc., 239 Ga. 127, 236 S.E.2d 73, 1977 Ga. LEXIS 836 (1977) (see O.C.G.A. § 9-3-30). Counts for mesne profits are within this section. Taylor v. James, 109 Ga. 327, 34 S.E. 674, 1899 Ga. LEXIS 646 (1899). This section applies to a count for mesne profits based on action of trespass, and also applies to a nuisance or continuing trespass. Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800, 1951 Ga. App. LEXIS 1005 (1951). Statute barred claim for electrical damage to office equipment. - Dissolved corporation’s failure to obtain reinstatement prior to the expiration of the four-year statute of limitations for the corporation’s causes of action arising out of electrical damage to the corporation’s

office equipment during a storm prevented the corporation from initiating a valid timely filed lawsuit. GC Quality Lubricants v. Doherty, Duggan, & Rouse Insurors, 304 Ga. App. 767, 697 S.E.2d 871, 2010 Ga. App. LEXIS 607 (2010), cert. denied, No. S10C1831, 2011 Ga. LEXIS 40 (Ga. Jan. 13, 2011). Evidence excluded because of statute of limitations. - Trial court properly excluded the pre-purchase promises made by a seller to the purchasers regarding the maintenance of a dam because the alleged promises occurred prior to the applicable four-year statute of limitation. Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894, 613 S.E.2d 673, 2005 Ga. App. LEXIS 332 (2005), cert. denied, No. S05C1459, 2005 Ga. LEXIS 703 (Ga. Oct. 11, 2005), cert. denied, No. S05C1369, 2005 Ga. LEXIS 704 (Ga. Oct. 11, 2005). State RICO claim expired. - When defendant sued a private youth treatment center for fraud under state RICO law nine years after the defendant reached the age of majority, and the statute of limitations began to run from the time the cause of action accrued, not from the time the racketeering activity terminated, the normal limitations restrictions of O.C.G.A. § 9-3-30 served to bar the defendant’s claim. Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 426 S.E.2d 165, 1992 Ga. App. LEXIS 1742 (1992), cert. denied, No. S92C0520, 1993 Ga. LEXIS 163 (Ga. Feb. 5, 1993). Waiver. - Failure to plead the affirmative defense of the statute of limitations for suits against developers for construction defects, as provided in O.C.G.A. § 93-30, results in its being waived. Glenridge Unit Owners Ass’n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418, 1987 Ga. App. LEXIS 2104 (1987). This section does not govern actions for recovery of realty. Blocker v. Boswell, 109 Ga. 230, 34 S.E. 289, 1899 Ga. LEXIS 619 (1899). Ejectment actions are not governed by this section. Roe v. John Doe, 46 Ga. 120, 1872 Ga. LEXIS 18 (1872). Transfer of Property Section does not apply to action to cancel deed. - Trial court erred in ap-

plying the four-year statutes of limitation found in O.C.G.A. §§ 9-3-30 and 9-3-31 to enter summary judgment on the seller’s action seeking to cancel a deed because Georgia law recognized an equitable seven-year limit on suits for cancellation of deeds. Serchion v. Capstone Partners, Inc., 298 Ga. App. 73, 679 S.E.2d 40, 2009 Ga. App. LEXIS 509 (2009), cert. denied, No. S09C1642, 2009 Ga. LEXIS 781 (Ga. Nov. 9, 2009). Trial court erred in granting family members summary judgment on the issue of the limitation period applicable to the children’s claims for cancellation of fraudulent deeds because the court should not have applied the four-year statute of limitation for fraud, O.C.G.A. §§ 9-3-30 and 9-3-31; although the trial court ruled that no evidence of fraud prevented the children from timely filing their claim within the four-year statute of limitation for fraud, the court did not consider whether fraud prevented the children from timely filing within the applicable seven-year period. Evans v. Dunkley, 316 Ga. App. 204, 728 S.E.2d 832, 2012 Ga. App. LEXIS 523 (2012). Inapplicable to attempted wrongful foreclosure claim. - Attempted wrongful foreclosure allegations did not state a claim for trespass under O.C.G.A. § 519-1 when mortgagors did not allege property damage or an entry onto their property resulting from a mortgagee’s initiation of foreclosure proceedings; therefore, the four-year limitations period under O.C.G.A. § 9-3-30 did not apply to the mortgagors’ attempted wrongful disclosure claim arising from a 2001 foreclosure action, and the claim was timebarred. Hauf v. HomEq Servicing Corp., No. 4:05-CV-109, 2007 U.S. Dist. LEXIS 9439 (M.D. Ga. Feb. 9, 2007). To establish passive concealment by the seller of defective realty, the purchaser must prove that the concealment was an act of fraud and deceit, that the defect could not have been discovered by the purchaser by the exercise of due diligence, and that the seller was aware of the defect and did not disclose the defect of. Wilson v. Phillips, 230 Ga. App. 290, 495 S.E.2d 904. Suit by subsequent owner barred if barred as to original owner. - The fact that suit was being brought by a subse-

Transfer of Property (Cont’d) quent owner did not revive the cause of action which was barred as to the original owners of a damaged building. U-Haul Co. v. Abreu & Robeson, Inc., 247 Ga. 565, 277 S.E.2d 497, 1981 Ga. LEXIS 787 (1981). Shortage of acreage in deed. - Action brought in October, 1940 for recovery of damages by reason of shortage of acreage conveyed in deed dated January, 1929, was barred, notwithstanding allegation of recent discovery of the shortage. Rigdon v. Barfield, 194 Ga. 77, 20 S.E.2d 587, 1942 Ga. LEXIS 513 (1942). Action for fraud and deceit for shortage in acreage of land must be brought within four years after the right of action accrues. The period of limitation begins to run upon discovery of the fraud. Forester v. McDuffie, 189 Ga. App. 359, 375 S.E.2d 488, 1988 Ga. App. LEXIS 1403 (1988). Taking of property by railroad. - This section applies to action based on taking of property by railroad. Cobb v. Wrightsville & T.R.R., 129 Ga. 377, 58 S.E. 862, 1907 Ga. LEXIS 383 (1907); Adams v. Macon, D. & S.R.R., 141 Ga. 701, 81 S.E. 1110, 1914 Ga. LEXIS 122 (1914). Taking of property for public use without just compensation. - When actual damage results to abutting property and is compensable under constitutional provision forbidding taking of private property without just compensation, action to recover such damage must be brought within four years from date right of action accrued. Southern Ry. v. Leonard, 58 Ga. App. 574, 199 S.E. 433, 1938 Ga. App. LEXIS 58 (1938). Recovery of damages for depreciation in market value of property in action against municipality for taking or damaging property for public use and for creation of permanent and continuing nuisance must be had within four years from date of original injury. City of La Fayette v. Hegwood, 52 Ga. App. 168, 182 S.E. 860, 1935 Ga. App. LEXIS 87 (1935). When work which resulted in damage to plaintiff’s property, for which the plaintiff would have been entitled to recover under former Code 1933, § 2-301, and Ga. Const. 1877, Art. I, Sec. III, Para. I (see Ga. Const. 1983, Art. I, Sec. III, Paras. I, II

and Art. III, Sec. VI, Para. II) was done more than four years previously, the action was barred by the statute of limitations. Lawrence v. City of La Grange, 63 Ga. App. 587, 11 S.E.2d 696, 1940 Ga. App. LEXIS 501 (1940). Construction Claim based on construction contract. - Six-year statute of limitations of O.C.G.A. § 9-3-24, not four-year limitations in O.C.G.A. § 9-3-30, applied to a claim for breach of contract arising out of the construction of an office building. Costrini v. Hansen Architects, P.C., 247 Ga. App. 136, 543 S.E.2d 760, 2000 Ga. App. LEXIS 1432 (2000). Because the four-year statute of limitations in O.C.G.A. § 9-3-30(a) had expired, an insurer acting as subrogee of its insured, a general contractor, was precluded from pursuing a subrogation claim based on negligence against a subcontractor that had damaged a roadway while installing underground cables. Mass. Bay Ins. Co. v. Sunbelt Directional Drilling, Inc., No. 1:07-CV-0408-JOF, 2008 U.S. Dist. LEXIS 20066 (N.D. Ga. Feb. 14, 2008). Action against builder time barred. - Action against builder of a house based on alleged defective construction of the house was time barred since the homeowner did not acquire title to the house until after the tort and contract statutes of limitation had expired, and the homeowner was not allowed to revive those causes of action; neither the discovery rule nor the continuing tort theory applied to actions involving only damage to real property, and since all representations allegedly made by the builder took place after the statutes of limitation had expired, equitable estoppel did not toll the running. Bauer v. Weeks, 267 Ga. App. 617, 600 S.E.2d 700, 2004 Ga. App. LEXIS 733 (2004). Accrual of cause for negligent design and construction. - Cause of action to recover damages in tort arising out of alleged negligent design and construction of building by defendants under contract with plaintiff accrued, and statute of limitations started to run, when negligent acts were committed resulting in damage

to plaintiff, not when portion of building later collapsed as a result thereof. Wellston Co. v. Sam N. Hodges, Jr. & Co., 114 Ga. App. 424, 151 S.E.2d 481, 1966 Ga. App. LEXIS 789 (1966) (commented on in 5 Ga. St. B.J. 169 (1968)). Cause of action by a property owner for damage to a building resulting from a construction or design defect accrues at the time of defective construction. Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 287 S.E.2d 229, 1981 Ga. App. LEXIS 2984 (1981); Broadfoot v. Aaron Rents, Inc., 195 Ga. App. 297, 393 S.E.2d 39, 1990 Ga. App. LEXIS 454 (1990), aff’d in part and rev’d in part, 260 Ga. 836, 401 S.E.2d 257, 1991 Ga. LEXIS 109 (1991), overruled, Hanna v. McWilliams, 213 Ga. App. 648, 446 S.E.2d 741, 1994 Ga. App. LEXIS 762 (1994). Cause of action by a property owner for damage to a building resulting from negligent construction or design accrues at the time of the completion of the building. Millard Matthews Bldrs., Inc. v. Plant Imp. Co., 167 Ga. App. 855, 307 S.E.2d 739, 1983 Ga. App. LEXIS 2640 (1983). Action for damage to personal property resulting from any negligent building construction does not accrue until the actual injury to that property occurs. Millard Matthews Bldrs., Inc. v. Plant Imp. Co., 167 Ga. App. 855, 307 S.E.2d 739, 1983 Ga. App. LEXIS 2640 (1983). Plaintiff’s cause of action against a civil engineering firm for negligence in designing a drainage system for a neighboring subdivision which caused flooding on the plaintiff’s property accrued on the date the property was first damaged. Travis Pruitt & Assocs. v. Bowling, 238 Ga. App. 225, 518 S.E.2d 453. Claim for damage to real estate based on negligence in construction, design, or installation of that real property accrued on the date of substantial completion of the project and was subject to a four year statute of limitations; the “discovery rule” did not apply to actions seeking recovery for property damage only, and a cause of action brought by the subrogee of the owner of a house against a subcontractor alleging negligent installation of electrical wiring in the house was time barred when brought more than four years after the

date of substantial completion of the house. Stamschror v. Allstate Ins. Co., 267 Ga. App. 692, 600 S.E.2d 751, 2004 Ga. App. LEXIS 756 (2004). When manufacturer/seller of windows is sued for property damage to home and the windows were part of the initial construction of the home, the cause of action would have accrued at the time of the allegedly defective construction. Thus, when the date of installation (construction) and sale of the windows was June 2, 1976, the action filed on September 16, 1983, was too late unless the statute of limitation was effectively tolled or unless the circumstances allow a finding of a different beginning point in time from which the statute would run. Kemp v. Bell-View, Inc., 179 Ga. App. 577, 346 S.E.2d 923, 1986 Ga. App. LEXIS 1949 (1986). Accrual of cause at time construction completed. - Property owner’s cause of action for damage to a building resulting from negligent construction accrues at the time of the completion of the construction, not at the time of the discovery of the injury. Bicknell v. Richard M. Hearn Roofing & Remodeling, Inc., 171 Ga. App. 128, 318 S.E.2d 729, 1984 Ga. App. LEXIS 2121 (1984). Limitations period does not run from time of actual damage. - Action under the statute must be brought within four years of substantial completion of a house, rather than within four years from the occurrence of damage to the house. Mitchell v. Contractors Specialty Supply, Inc., 247 Ga. App. 628, 544 S.E.2d 533, 2001 Ga. App. LEXIS 67 (2001), cert. denied, No. S01C0734, 2001 Ga. LEXIS 511 (Ga. June 11, 2001). Suit barred by statute of limitations as suit was for breach of contract, not negligence. - Trial court properly granted summary judgment in a breach of contract claim to a construction company and one of the company’s representatives as the suing homeowner had brought suit in 2007, and the work on the interior of the home was substantially completed in 1999; thus, the suit was barred by the six year limitation period set forth in O.C.G.A. § 9-3-24. The suit did not sound in tort since the homeowner

Construction (Cont’d) failed to allege any property damage and only sought repair/replacement damages. Wilks v. Overall Constr., Inc., 296 Ga. App. 410, 674 S.E.2d 320, 2009 Ga. App. LEXIS 32 (2009). Synthetic siding. - Amendment to the statute, which recognizes a discovery rule for property damage caused by synthetic siding, did not apply to an action for which the limitations period expired prior to the effective date of the amendment. Mitchell v. Contractors Specialty Supply, Inc., 247 Ga. App. 628, 544 S.E.2d 533, 2001 Ga. App. LEXIS 67 (2001), cert. denied, No. S01C0734, 2001 Ga. LEXIS 511 (Ga. June 11, 2001). In an action for breach of implied warranties arising from moisture damage under the synthetic stucco cladding used in the construction of the plaintiffs’ home, the trial court should have applied the six-year limitation period for contract actions contained in O.C.G.A. § 9-3-24, rather than the four-year limitation period for damage to property actions contained in O.C.G.A. § 9-3-30. Hickey v. Bowden, 248 Ga. App. 647, 548 S.E.2d 347, 2001 Ga. App. LEXIS 259 (2001), rev’d in part, aff’d in part, 275 Ga. 249, 569 S.E.2d 495, 2002 Ga. LEXIS 479 (2002). In an HOA’s suit alleging negligent construction against a developer and others, the four-year statute of limitation for the negligent installation of synthetic siding, O.C.G.A. § 9-3-30(b)(1), began running when the HOA should have discovered that condominiums were being damaged due to water intrusion from defective siding, and here potential problems were discovered well before that four-year window. Demere Marsh Assocs., LLC v. Boatright Roofing & Gen. Contr., Inc., 343 Ga. App. 235, 808 S.E.2d 1, 2017 Ga. App. LEXIS 473 (2017), cert. denied, No. S18C0445, 2018 Ga. LEXIS 324 (Ga. May 7, 2018), cert. denied, No. S18C0446, 2018 Ga. LEXIS 343 (Ga. May 7, 2018). Substantial completion of building. - Four-year limitation period ran from last work performed on a building, when the last work constituted “substantial completion”. Broadfoot v. Citizens S. Nat’l

Bank, 208 Ga. App. 382, 430 S.E.2d 638, 1993 Ga. App. LEXIS 487 (1993), cert. denied, No. S93C1171, 1993 Ga. LEXIS 869 (Ga. Sept. 20, 1993). Earliest date at which a house can be deemed to be substantially completed for purposes of the statute is when the certificate of occupancy is granted. Hickey v. Bowden, 248 Ga. App. 647, 548 S.E.2d 347, 2001 Ga. App. LEXIS 259 (2001), rev’d in part, aff’d in part, 275 Ga. 249, 569 S.E.2d 495, 2002 Ga. LEXIS 479 (2002). Because the owner’s negligence claims were brought more than four years after the construction of the owner’s home was completed, the owner could not represent a class alleging defective materials and the manufacturer was entitled to summary judgment. Dryvit Sys. v. Stein, 256 Ga. App. 327, 568 S.E.2d 569, 2002 Ga. App. LEXIS 908 (2002). O.C.G.A. § 9-3-30(a) governed homebuyers’ claims for negligent construction, breach of warranty, and negligent misrepresentation against homebuilders and a company that manufactured stucco that was used in construction, but whereas the buyers’ cause of action against the builders did not began to run until the buyers purchased the home, the buyers’ cause of action against the manufacturer began to run when the home was substantially completed and because that date was more than four years before the buyers’ filed suit, the buyers’ claim against the manufacturer was barred. Colormatch Exteriors, Inc. v. Hickey, 275 Ga. 249, 569 S.E.2d 495, 2002 Ga. LEXIS 479 (2002). Subsequent repairs do not toll the statute of limitation as the right of action accrues at the time of substantial completion of the project. Heffernan v. Johnson, 209 Ga. App. 139, 433 S.E.2d 108, 1993 Ga. App. LEXIS 794 (1993). Contractor’s suit against soils engineering firm. - O.C.G.A. § 9-3-30 was applied to a contractor’s suit against a soils engineering firm, since the gravamen of the contractor’s complaint was that the firm’s actions in testing soil in a proposed building area led to damage to the real estate because subsequent construction was based on the firm’s soil testing and recommendations. Bowen & Bowen, Inc. v.

McCoy-Gibbons, Inc., 185 Ga. App. 298, 363 S.E.2d 827, 1987 Ga. App. LEXIS 2484 (1987). Other Examples Liability of individual in possession as trespasser or tenant in common holding adversely to the cotenants ceased four years after the individual was no longer in possession or put others in possession. Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800, 1951 Ga. App. LEXIS 1005 (1951). Waste by life tenant. - Life tenant who commits waste by selling and removing timber, to the permanent injury of the estate, does not hold proceeds under implied or resulting trust in favor of remainderman, but is liable as a tort-feasor, and cause of action against the life tenant is barred in four years. Lazenby v. Ware, 178 Ga. 463, 173 S.E. 86, 1934 Ga. LEXIS 78 (1934). Damages for timber cut and removed. - Right of action to recover damages for timber cut and removed from the plaintiff’s land by the defendants accrued when timber was cut and removed, and whether the plaintiff’s action was construed as one seeking damages for trespass upon realty or damages for conversion of personalty, the applicable period of limitation was four years. Harper v. Jones, 103 Ga. App. 40, 118 S.E.2d 279, 1961 Ga. App. LEXIS 849 (1961). Inverse condemnation claim based on nuisance. - Since no clear rule exists in Georgia or elsewhere for distinguishing in specific cases between continuing and permanent nuisance, a plaintiff is allowed to choose how it will construe a defendant’s alleged nuisance; thus, when the plaintiff alleged a cause of action for continuing nuisance and the alleged nuisance occurred within the four years preceding the date on which the plaintiff filed its suit, the defendant was not entitled to summary judgment. Speer v. Miller, 864 F. Supp. 1294, 1994 U.S. Dist. LEXIS 13460 (N.D. Ga.), amended, 864 F. Supp. 1294 (N.D. Ga. 1994). Action for inverse condemnation based on increased noise caused by the opening of an airport runway accrued at the time the runway became operational and the

injury became immediately apparent, not when the landowner was denied compensation for the taking. Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 472 S.E.2d 499. Complaint alleging that alterations in flight paths and increased noise since property was purchased filed more than four years after the city’s opening of an airport runway was barred since the city presented evidence sufficient to show that there had been no increase in the nuisance over the landowner’s property. Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 472 S.E.2d 499. To the extent that the landowners asserted a claim for permanent nuisance based on the installation of a drain pipe more than four years prior to filing the claim, the landowners’ claim was barred by the statute of limitations. Liberty County v. Eller, 327 Ga. App. 770, 761 S.E.2d 164, 2014 Ga. App. LEXIS 424 (2014), cert. denied, No. S14C1664, 2014 Ga. LEXIS 695 (Ga. Sept. 8, 2014). Application to nuisance action. - Trial court erred by allowing a homeowner’s nuisance claim against a county to survive summary judgment because that claim was barred by the four-year statute of limitations period set forth in O.C.G.A. § 9-3-30(a) as the homeowner did not file suit until eight years after the county performed the drain work complained of in the action that was purportedly causing the homeowner’s property to flood. Floyd County v. Scott, 320 Ga. App. 549, 740 S.E.2d 277, 2013 Ga. App. LEXIS 230 (2013), cert. denied, No. S13C1099, 2013 Ga. LEXIS 669 (Ga. Sept. 9, 2013). Change of street’s grade. - This section applies to action for change of street grade. Atkinson v. City of Atlanta, 81 Ga. 625, 7 S.E. 692, 1888 Ga. LEXIS 292 (1888); Holmes v. City of Atlanta, 113 Ga. 961, 39 S.E. 458, 1901 Ga. LEXIS 431 (1901); Witham v. Atlanta Journal, 124 Ga. 688, 53 S.E. 105, 1906 Ga. LEXIS 589 (1906). County’s maintenance of road a continuing nuisance. - Trial court erred in granting summary judgment to the county on the property owners’ claim based on the county’s maintenance of the road causing flooding on the owners’ prop-

Other Examples (Cont’d) erty on the ground that the owners’ claim was barred by the statute of limitations because the claimed nuisance was a claim of a continuing nuisance and not barred by the applicable four year statute of limitations. Stroud v. Hall County, 339 Ga. App. 37, 793 S.E.2d 104, 2016 Ga. App. LEXIS 573 (2016). In a continuing tort situation, only damages alleged to have occurred within four years of the plaintiff’s bringing suit are not barred. Brooks v. Freeport Kaolin Co., 253 Ga. 678, 324 S.E.2d 170, 1985 Ga. LEXIS 515 (1985). Continuing trespass. - Continuous trespass gives right of action, even when recovery for original act of trespass is barred. Monroe v. McCranie & Vickers, 117 Ga. 890, 45 S.E. 246, 1903 Ga. LEXIS 383 (1903). In case of continuing trespass, entire cause of action will not be barred merely because original entry occurred more than four years before commencement of action. Savannah Elec. & Power Co. v. Horton, 44 Ga. App. 578, 162 S.E. 299, 1932 Ga. App. LEXIS 395 (1932). When trespass is continuing in nature, new cause of action arises daily, and action may be maintained for all damages accruing during four years immediately preceding filing of action. Gleaton v. City of Atlanta, 131 Ga. App. 399, 206 S.E.2d 46, 1974 Ga. App. LEXIS 1432 (1974). Continuing nuisance allegation. - Action alleging damage to landowner’s property resulting from contractor’s construction of a sewer line across property is an action under O.C.G.A. § 9-3-30 to which this section’s limitations period applies rather than an action for a continuing nuisance to which the limitations period does not apply; even though a continuing nuisance existed due to soil erosion allegedly caused by the contractor’s actions, the recovery sought was for damage to property directly inflicted during the time of construction. Mullins v. Wheatley Grading Contractors, 184 Ga. App. 119, 361 S.E.2d 10, 1987 Ga. App. LEXIS 2165 (1987). When the plaintiff alleged that flights over its property constituted a nuisance

for which it could recover common law tort damages and defendant city, as operator of the airport, did not carry its burden of showing that the plaintiff lacked evidence that the defendant did not properly operate the airport or that the defendant was not responsible for the allegedly offensive nature of overflights, the defendant was not entitled to summary judgment. Speer v. Miller, 864 F. Supp. 1294, 1994 U.S. Dist. LEXIS 13460 (N.D. Ga. 1994). Because there was no evidence that a sewer line backup injured more than a few individuals who came into contact with it, the backup did not constitute a public nuisance pursuant to O.C.G.A. § 41-1-2, and the four-year limitations period of O.C.G.A. § 9-3-30 applied to the nuisance claim brought by property owners against a city. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495, 2005 Ga. App. LEXIS 998 (2005), cert. denied, No. S06C0356, 2006 Ga. LEXIS 235 (Ga. Mar. 27, 2006). Action time barred. - Homeowners’ claims for trespass and nuisance were time barred by the four year statute of limitations because it was clear that the trespass occurred and the nuisance was created when the sewer and storm lines were first installed on the homeowners’ property more than 20 years earlier and although the homeowners were unaware of the existence of the lines at the time the homeowners purchased the home, it was undisputed that the homeowners became aware of the lines more than four years before the homeowners filed their complaint. City of Atlanta v. Carlisle, 359 Ga. App. 444, 858 S.E.2d 543, 2021 Ga. App. LEXIS 217 (2021). Continuing nuisance gives rise to cause of action, despite bar against recovery for original act of nuisance. City Council v. Lombard, 101 Ga. 724, 28 S.E. 994, 1897 Ga. LEXIS 309 (1897). In a continuing, abatable nuisance case, this section does not preclude recovery for any damages save those which were suffered more than four years prior to filing of action. City of Columbus v. Myszka, 246 Ga. 571, 272 S.E.2d 302, 1980 Ga. LEXIS 1201 (1980). Although the act that originally caused the nuisance might not have been commit-

ted within the period of limitations of the action, the defendant presented some evidence that the groundwater contamination was a continuing tort that continued to inflict damages in the four years prior to the suit; therefore, summary judgment was inappropriate when based upon the suit being time barred. Tri-County Inv. Group v. Southern States, Inc., 231 Ga. App. 632, 500 S.E.2d 22, 1998 Ga. App. LEXIS 416 (1998). Successive recoveries for successive injuries. - When nuisance is permanent in character and its construction and continuance are not necessarily injurious, injury to be compensated is only damage which has happened, and there may be as many successive recoveries as there are successive injuries; in such case, statute of limitations begins to run from happening of injury complained of. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520, 1933 Ga. App. LEXIS 420 (1933). When nuisance is not permanent in character, but is one which can and should be abated, every continuance of such nuisance is a fresh nuisance, for which a fresh action will lie; action accrues at time of such continuance, and statute of limitations runs only from time of such accrual. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520, 1933 Ga. App. LEXIS 420 (1933). When structure, though permanent in character, is not necessarily a permanent and continuing nuisance, but only becomes such in consequence of some supervening cause producing special injury at different periods, separate action lies for each injury thus occasioned, and statute begins to run against such cause of action only from time of its accrual, that is, from time when special injury is occasioned. Georgia Power Co. v. Moore, 47 Ga. App. 411, 170 S.E. 520, 1933 Ga. App. LEXIS 420 (1933). Substantial increase in damages caused by nuisance. - When damage to property of lower-riparian owner was result of maintenance of continuing nuisance for over 20 years but had increased substantially within the four-year period next preceding filing of action for damages, the owner’s cause of action was not

barred by the statute of limitations. Vickers v. City of Fitzgerald, 216 Ga. 476, 117 S.E.2d 316, 1960 Ga. LEXIS 509 (1960), overruled, City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488, 1994 Ga. LEXIS 894 (1994). Federal CERCLA discovery rule applicable. - Under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9658, there is a federally mandated “discovery rule” for environmental torts brought under state law, despite the fact that Georgia generally does not provide such a rule for torts involving only property damage. Tucker v. Southern Wood Piedmont Co., 28 F.3d 1089, 1994 U.S. App. LEXIS 21576 (11th Cir. 1994). Hazardous waste leakage a continuing tort. - Under Georgia’s continuing tort doctrine, plaintiffs would be entitled to any damages that the plaintiffs can prove to have been caused by leakage of hazardous waste onto their property from and after September 6, 1987, i.e., four years prior to the date the action was filed. Tucker v. Southern Wood Piedmont Co., 28 F.3d 1089, 1994 U.S. App. LEXIS 21576 (11th Cir. 1994). Damages resulting years after construction of dam. - Action for damages is not barred under this section when instrumentality causing damages, such as dam was in existence for many years, with knowledge of person damaged, but damages sought to be recovered accrued within four years from filing of complaint. Rogers v. Western & A.R.R., 209 Ga. 450, 74 S.E.2d 87, 1953 Ga. LEXIS 296 (1953). Overflow of land by dam. - Action for overflow of land by lawfully constructed dam is governed by this section. Smith v. Dallas Util. Co., 27 Ga. App. 22, 107 S.E. 381, 1921 Ga. App. LEXIS 654 (1921). Destruction of existing dam. - In suit by the owners of lakefront lots to enjoin a developer from destroying the dam which created the lake, the owners’ cause of action did not accrue until the developer began to demolish the dam; thus, the suit was not barred by the statute of limitations for damage to property. Dillard v. Bishop Eddie Long Ministries, Inc., 258 Ga. App. 507, 574 S.E.2d 544,

Other Examples (Cont’d) 2002 Ga. App. LEXIS 1339 (2002), cert. denied, No. S03C0504, 2003 Ga. LEXIS 228 (Ga. Feb. 24, 2003). Flow of sewage across property. - City’s knowingly allowing human sewage from its sewage system to flow across owner’s property for many months constituted a continuing, abatable nuisance, action for which was not barred by this section except with respect to damages suffered more than four years prior to the filing of the action. City of Columbus v. Myszka, 246 Ga. 571, 272 S.E.2d 302, 1980 Ga. LEXIS 1201 (1980). Trial court properly determined that the property owners’ claims of property damage, based on a continuing nuisance due to sewage backup, that were suffered more than six months prior to the filing of their ante litem notice pursuant to O.C.G.A. § 36-33-5(b) were barred as untimely; although a prior letter could have constituted an ante litem notice, the fouryear limitations period under O.C.G.A. § 9-3-30 ran prior to the institution of the lawsuit, such that any claims in the six months prior to that letter were also barred. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495, 2005 Ga. App. LEXIS 998 (2005), cert. denied, No. S06C0356, 2006 Ga. LEXIS 235 (Ga. Mar. 27, 2006). Emptying of sewer line into creek above property. - Petition against city for damages occasioned by emptying of sewer line into creek above plaintiffs’ land contained sufficient allegations as to inability to grow consumable crops, inability to maintain healthy streams, and enforced abandonment of premises, as to show continuing nuisance and to constitute nucleus for a cause of action, completed by proffered amendment specifically electing to sue for diminution in rental value, for damage to realty by reason of reduced rental value; in such a case action would lie for damages accruing within four years before next filing of action. Segars v. City of Cornelia, 56 Ga.

App. 718, 193 S.E. 794, 1937 Ga. App. LEXIS 212 (1937). Nuisance action wherein railroad and city were alleged to have failed to maintain a culvert and drainage pipe that caused flood damage. - Appellate court erred by reversing summary judgment to a railroad and a city in the homeowners’ nuisance and negligence suit against the entities as the homeowners’ permanent nuisance claim was barred by the four year statute of limitations period set forth in O.C.G.A. § 9-3-30; the homeowners failed to show triable issues that the railroad improperly maintained the culvert and drainage pipe at issue; and the homeowners failed to show that the city had any duty to maintain the culvert and pipe since the homeowners failed to show that the city had taken any control over the property in question and, thus, became responsible for maintaining the culvert and pipe. City of Atlanta v. Kleber, 285 Ga. 413, 677 S.E.2d 134, 2009 Ga. LEXIS 175 (2009). Claim based on alleged spillage of gasoline from tanks when the tanks were removed during construction was for property damage and thus, when past the four years statute of limitations, was barred. Griffin v. Kangaroo, Inc., 208 Ga. App. 190, 430 S.E.2d 82, 1993 Ga. App. LEXIS 481 (1993), cert. denied, No. S93C1095, 1993 Ga. LEXIS 751 (Ga. July 15, 1993). Nuisance alleged from energy plant noise and vibrations. - Denial of summary judgment to an energy facility owner and operator was proper in an action by neighboring property owners, alleging a nuisance from the noise and vibrations emanating from the facility, as an issue of fact existed as to whether there was an adverse change in the nature of the alleged nuisance within the limitations period of O.C.G.A. § 9-3-30(a). Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 711 S.E.2d 641, 2011 Ga. LEXIS 466 (2011), dismissed, 332 Ga. App. 693, 774 S.E.2d 755, 2015 Ga. App. LEXIS 384 (2015).

Evidence supported a jury’s verdict that there was a change in the nature of the noises produced by a power plant that used gas-fired combustion turbine units, sufficient to allow nearby landowners to bring nuisance claims that were timely under O.C.G.A. § 9-3-30(a); awards of damages, punitive damages, and attorney’s fees were upheld. Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 774 S.E.2d 755, 2015 Ga. App. LEXIS 384 (2015), cert. denied, No. S15C1689, 2015 Ga. LEXIS 704 (Ga. Oct. 5, 2015). Nuisance and trespass claims for injuries against an airport based on noise, dust, exhaust, and vibrations from the planes accrued when the airport began operation and, since the claims were filed more than four years thereafter, were barred by O.C.G.A. § 9-3-30. Provident Mut. Life Ins. Co. v. City of Atlanta, 938 F. Supp. 829, 1995 U.S. Dist. LEXIS 21202 (N.D. Ga. 1995). Airport was permanent nuisance. - Airport was a permanent, rather than a continuing nuisance, since the damage complained of became apparent at the time the runways in question became operational. Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 472 S.E.2d 499. Accrual of cause for negligent misrepresentation. - Evidence showed that not until after the city activated its land application system did the city incur pecuniary losses due to misrepresentations in the engineering firm’s report relating to the land application system; be-

cause the city filed suit within four years of that time, the negligent misrepresentation claim was not time barred. City of Cairo v. Hightower Consulting Eng’rs, Inc., 278 Ga. App. 721, 629 S.E.2d 518, 2006 Ga. App. LEXIS 365 (2006). Accrual of cause for damage due to faulty utility service. - When a defect is not in the construction of a building or other structure but in the installation of equipment owned and maintained by a public utility for the purpose of providing service to the property, and it is totally unreasonable to expect the owner to discover it or assume responsibility for its repair, particularly when it is buried underground, the four-year limitation period established by O.C.G.A. § 9-3-30 does not begin to run until the date the property is damaged. Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 287 S.E.2d 229, 1981 Ga. App. LEXIS 2984 (1981). Suit arising from power poles time barred. - Owner’s action against a power company arising from power poles on the owner’s property was time barred under O.C.G.A. § 9-3-30 because the owner bought the property after the poles were installed and the lines were operating, but failed to bring suit within four years of the purchase date; the suit was barred whether brought as a trespass claim or an inverse condemnation claim. Adams v. Ga. Power Co., 299 Ga. App. 399, 682 S.E.2d 650, 2009 Ga. App. LEXIS 812 (2009), cert. denied, No. S09C2018, 2010 Ga. LEXIS 14 (Ga. Jan. 12, 2010).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Limitation of Actions, §§ 121 et seq., 147 et seq. C.J.S. 54 C.J.S., Limitations of Actions, §§ 82, 116 et seq. ALR. Limitation of actions: when does statute begin to run against action based on removal of lateral or subjacent support, 26 A.L.R. 1235. When limitation begins to run against an action to recover on account of removal of mineral from land, 37 A.L.R. 1182.

Limitation of action against tenant for years or for life for waste or breach of obligation as to use and care of property, 53 A.L.R. 46. Wrongful pollution of stream by municipality as creating single cause of action or successive causes of action, 75 A.L.R. 529. Rights and remedies in respect of legacy charged upon land devised, 116 A.L.R. 7; 134 A.L.R. 361. Rule that limitation begins to run when conditions causing a permanent injury to real property are created or when the permanent character of the injury be-

comes obvious, as affecting later increase or change in the nature of the damages, 126 A.L.R. 1284. When statute of limitations commences to run on action for wrongful seizure of property of third person under process or court order, 156 A.L.R. 253. When statute of limitation commences to run against damage from overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302. Commencement of running of statute of limitations respecting actions by owners of right of re-entry, or actions against third persons by reversioners, 19 A.L.R.2d 729. Statute of limitations applicable to action for encroachment, 24 A.L.R.2d 903. Statutes of limitation concerning actions of trespass as applicable to actions for injury to property not constituting a common-law trespass, 15 A.L.R.3d 1228. Right of contingent remainderman to maintain action for damages for waste, 56 A.L.R.3d 677. When statute of limitations commences to run against claim for contribution or indemnity based on tort, 57 A.L.R.3d 867. What statute of limitations applies to

action for contribution against joint tortfeasor, 57 A.L.R.3d 927. Promises or attempts by seller to repair goods as tolling statute of limitations for breach of warranty, 68 A.L.R.3d 1277. When statute of limitations begins to run on negligent design claim against architect, 90 A.L.R.3d 507. Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability, 12 A.L.R.4th 866. Right to compensation for real property damaged by law enforcement personnel in course of apprehending suspect, 23 A.L.R.5th 834. Modern status of the application of “discovery rule” to postpone running of limitations against actions relating to breach of building and construction contracts, 33 A.L.R.5th 1. Accrual of claims for continuing trespass or continuing nuisance for purposes of statutory limitations, 14 A.L.R.7th 8. Accrual of Inverse Condemnation Claim Against Federal Government Based on Contamination, Dumping, or Cleanup, 50 A.L.R. Fed.3d 1.