GA Code § 44-6-101 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 6 - Estates|Article 6 - Estates for Years|§ 44-6-101. Estate for Years Distinguished From Contract of Hiring and From Landlord and Tenant Relationship

 As applied to personalty, an estate for years differs from a contract of hiring, which is a bailment conveying no interest in the property to the bailee but merely the right of use. As applied to realty, an estate for years does not involve the relationship of landlord and tenant, in which relationship the tenant has no estate but merely has a right of use which is very similar to the right of a hirer of personalty.   (Orig. Code 1863, § 2256; Code 1868, § 2248; Code 1873, § 2274; Code 1882, § 2274; Civil Code 1895, § 3110; Civil Code 1910, § 3686; Code 1933, § 85-802.)   Cross references.   - Creation of landlord and tenant relationship generally, § 44-7-1.   Law reviews.   - For article analyzing legal aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For comment regarding distinction between estate for years and landlord-tenant relationship, in light of State v. Davison, 198 Ga. 27, 31 S.E.2d 225 (1944), see 7 Ga. B.J. 233 (1944). For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).   JUDICIAL DECISIONS   "Lease" and "bailment" distinguished.    - Both "lease" and "bailment" are indicative of a contractual relationship, and the terms are not necessarily mutually exclusive. A lease may refer to a contract involving realty or personalty, or both, whereas a bailment involves the custody of personalty. Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470, 174 S.E.2d 219 (1970).    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).   Creation of estate for years not conclusively shown by five-year lease.    - 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).    Usufruct is lesser interest in real estate than is an estate for years, which does not involve the landlord-tenant relationship. Richmond County Bd. of Tax Assessors v. Richmond Bonded Whse. Corp., 173 Ga. App. 278, 325 S.E.2d 891 (1985); Searcy v. Peach County Bd. of Tax Assessors, 180 Ga. App. 531, 349 S.E.2d 515 (1986).   Holder of estate may maintain damage action against tenant wrongfully holding over.    - When the owner of land conveys the land for such a term of years as to convey an estate for years, the holder of the estate may, if entitled to possession under the conveyance, maintain an action for damages against a tenant for wrongful holding over and beyond the tenant's term. Baxley v. Davenport, 75 Ga. App. 659, 44 S.E.2d 388 (1947).   In landlord-tenant relationship, duty of making repairs and improvements upon landlord.    - When the lease requires the conclusion that the relation between the parties thereto was that of landlord and tenant, the duty of making the structural changes and improvements in the leased premises, whether they be regarded as "repairs" or as "substantial improvements," is upon the landlord and not upon the tenant. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723, 49 S.E.2d 779 (1948).   Lessees look to owner to place the lessees lawfully in possession.    - When the owner of lands does not convey the title or an estate therein but gives the lessees only the usufruct, the lessees may not maintain an action for damages or one to recover possession from a tenant of the owner who is alleged to be holding over and beyond the term for which 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).   Estate for years found created.    - Contract in which the Board of Regents of the University System of Georgia leased a tract of land to a fraternity for a term of 99 years, for a rent of $1.00 per year, and which allowed the fraternity to erect a building on the premises, transfer, sell, or convey the property to another fraternity, and following which the fraternity executed a mortgage to secure a loan made by the mortgagee-regents and which was recorded, despite certain restrictions and covenants preventing the lessee from exercising absolute control over the property, granted the fraternity an estate for years, and not a mere leasehold; such an interest could be levied upon for the failure to pay taxes. State v. Davison, 198 Ga. 27, 31 S.E.2d 225 (1944), commented on in 7 Ga. B.J. 233 (1944).    When most sections of a lease either granted rights to or imposed obligations upon the lessee consistent with the conveyance of an estate for years, or set forth restrictions designed to preserve a hotel on the property as a historic structure and protect the lessor's reversionary interest, and the remaining restrictions did not quantitatively or qualitatively outweigh the incidents of ownership vested in the lessee to convert the interest conveyed from the intended leasehold estate to a usufruct, it was proper to require the lessee to pay ad valorem taxes on its interest in the hotel. Jekyll Dev. Assocs., L.P. v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 273, 523 S.E.2d 370 (1999).   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" when 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).   Easement by necessity not created by usufruct granted to tenant.    - 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).    Cited in Eastern Air Lines v. Joint City-County Bd. of Tax Assessors, 253 Ga. 18, 315 S.E.2d 890 (1984); Thompson v. Crownover, 259 Ga. 126, 381 S.E.2d 283 (1989).   RESEARCH REFERENCES   Am. Jur. 2d.   - 49 Am. Jur. 2d, Landlord and Tenant, §§ 7, 8, 60 et seq.   C.J.S.   - 8 C.J.S., Bailments, § 7. 51C C.J.S., Landlord and Tenant, §§ 2, 26.   ALR.    - Assignment of lease as breach of covenant against subletting, 7 A.L.R. 249; 79 A.L.R. 1379.    Duty to disclose to sublessee ownership of property, 37 A.L.R. 1455.    Right of lessee to equitable relief against forfeiture for breach of conditions as affected by lessor's giving a lease to entering into other contractual obligations with a third person, 166 A.L.R. 807.   Implied covenant or obligation to provide lessee with actual possession, 96 A.L.R.3d 1155.