GA Code § 44-9-4 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 9 - Easements|Article 1 - In General|§ 44-9-4. Parol License; When Revocable; When Easement Running With Land

 A parol license to use another's land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.   (Civil Code 1895, § 3069; Civil Code 1910, § 3645; Code 1933, § 85-1404.)   Law reviews.   - For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009). For comment on Grant v. Haymes, 164 Ga. 371, 138 S.E. 892 (1927), see 1 Ga. L. Rev. No. 2, p. 45 (1927).   JUDICIAL DECISIONS    License is a mere permissive use, generally in parol and revocable, while an easement created by agreement constitutes an interest in land requiring a writing within the statute of frauds, and subject to the rules governing the construction of deeds. Barton v. Gammell, 143 Ga. App. 291, 238 S.E.2d 445 (1977).    Terms of the license must be strictly followed and cannot be extended or varied by the licensee. Mayor of Athens v. Gregory, 231 Ga. 710, 203 S.E.2d 507 (1974).    O.C.G.A. § 44-9-4 enunciates a principle which would appear to be based on equitable estoppel in order to protect a party from loss. Jordan v. Coalson, 235 Ga. 326, 219 S.E.2d 439 (1975).    O.C.G.A. § 44-9-4 is operative only where there is an express oral license. Jordan v. Coalson, 235 Ga. 326, 219 S.E.2d 439 (1975).    O.C.G.A. § 44-9-4 is operative only where there is an express oral license. It does not apply to implied licenses nor is it susceptible to such an interpretation, and it will not be extended beyond its plain terms so as to establish irrevocable property rights in another's land under an implied license. Berolzheimer v. Taylor, 230 Ga. 595, 198 S.E.2d 301 (1973).    It was error to hold that the defendant had an irrevocable license to use a curb cut under O.C.G.A. § 44-9-4; it was undisputed that the trustees of the trust that owned the land in question never granted the defendant an express oral license to use the curb cut, and at most the defendant had an implied license, to which O.C.G.A. § 44-9-4 did not apply. Postnieks v. Chick-fil-A, Inc., 285 Ga. App. 724, 647 S.E.2d 281 (2007).   License not made irrevocable by mere expenditures upon improvements to enjoy license.    - Where the licensee merely improves own property in the expectation of enjoying the license, it was not such an expenditure as would make the license irrevocable, since it cannot be said that the license became an agreement for a valuable consideration and the licensee a purchaser for value. Miller v. Slater, 187 Ga. 552, 186 S.E. 413 (1936).    Trial court properly granted summary judgment to a neighbor in a trespass action that involved use of a roadway to gain access to a marsh area as the defending neighbors failed to show prescriptive rights to the roadway were obtained since there was no evidence in the record indicating that the defending neighbors maintained the roadway during any seven year period in any manner; the record established that the roadway was too wide to function as a private right of way; and even if the defending neighbors had obtained a parol license to use the roadway, such license was still revocable despite the expenditure of funds to build a dock. Warner v. Brown, 290 Ga. App. 510, 659 S.E.2d 885 (2008).    The mere fact that a licensee erects improvements upon the person's own land and thereby incurs expense in the expectation of enjoying the license would not be such an expenditure as would make the licensee a purchaser for value and the license irrevocable. Tift v. Golden Hwde. Co., 204 Ga. 654, 51 S.E.2d 435 (1949).    The mere fact that a licensee erects improvements upon own land and thereby incurs expense in the expectation of enjoying the license would not be such an expenditure as would make the licensee a purchaser for value and the license irrevocable. Cox v. Zucker, 214 Ga. 44, 102 S.E.2d 580 (1958).   License becomes irrevocable when licensee erects necessary valuable improvements.    - A parol license becomes irrevocable when the licensee, on the faith of the license, expends money and erects valuable improvements necessary to enjoy the license. Miller v. Slater, 182 Ga. 552, 186 S.E. 413 (1936).    Because a lessee had a license concerning a sign on its leased property, made improvements in reliance of the lease, and a second lessee took ownership of the property with actual notice of the sign, the trial court abused its discretion in denying the lessee an interlocutory injunction barring the second lessee from interfering with the sign, as the license became irrevocable; moreover, the fact that the lessee did not own the land in which the sign was located was irrelevant. Lowe's Home Ctrs., Inc. v. Garrison Ridge Shopping Ctr. Marietta, GA, L.P., 283 Ga. App. 854, 643 S.E.2d 288 (2007).    Executed parol license, where expenses have been incurred, ripens into easement running with the land. Berolzheimer v. Taylor, 230 Ga. 595, 198 S.E.2d 301 (1973) See Hopkins v. Virginia Highland Assocs., 247 Ga. App. 243, 541 S.E.2d 386 (2000).    As between private persons, a parol license, though primarily revocable, is not so when the licensee has executed it, and in so doing has incurred expense. A mere license without consideration is determinable at the pleasure of the licensor, yet if the enjoyment of a license must necessarily be and is preceded by the expenditure of money, such a license then becomes an agreement on a valuable consideration, and is irrevocable. Tanner-Brice Co. v. Sims, 174 Ga. 13, 161 S.E. 819 (1931).    The principle embodied in O.C.G.A. § 44-9-4 is that, if the enjoyment of the license must necessarily be preceded by the expenditure of money and the licensee has incurred expense in executing it, the license becomes an agreement for a valuable consideration and the licensee becomes a purchaser for value. Miller v. Slater, 182 Ga. 552, 186 S.E. 413 (1936).    To give a verbal agreement the same dignity and binding effect as a writing under seal, duly recorded, it must appear that it has been executed by one of the parties and in so doing that one has incurred expense. It must also appear that subsequent grantees took with notice of the agreement. Such a verbal agreement is enforceable to the same extent as if written. Meadows v. Page, 187 Ga. 686, 1 S.E.2d 656 (1939).    One having executed an oral agreement or license, and having incurred expense in so doing, the oral license, which would otherwise be revocable on the death of the licensor, is taken out of the statute of frauds and becomes irrevocable. Smith v. Fischer, 59 Ga. App. 791, 1 S.E.2d 684 (1939).    If the enjoyment of the parol license must be preceded necessarily by the expenditure of money, and the grantee incurred expense in executing it, it becomes an agreement for a valuable consideration, and the licensee a purchaser for value. Mathis v. Holcomb, 215 Ga. 488, 111 S.E.2d 50 (1959); Waters v. Pervis, 153 Ga. App. 71, 264 S.E.2d 551 (1980).    Trial court properly granted a corporation's summary judgment motion and awarded a corporation injunctive relief, barring an owner from interfering with the corporation's right of access to a highway, as the corporation's predecessor improved property on which it held a parol license, which created an easement that ran with the land under O.C.G.A. § 44-9-4, and which passed to the corporation. Blake v. RGL Assocs., Inc., 267 Ga. App. 709, 600 S.E.2d 765 (2004).   Parol license could be revoked.    - A parol license to use neighboring property for ingress, egress, and parking could be revoked where the licensee's enjoyment of the license was not preceded necessarily by the expenditure of money. McCorkle v. Morgan, 268 Ga. 730, 492 S.E.2d 891 (1997).    Evidence supported a finding that a lot owner had abandoned any interest the lot owner had in an unused alley: the alley was unused since the 1970s, a neighboring owner improved the alley and blocked the alley's use in 1991, the owner consented to the improvements and supported a re-zoning plan that included fencing, and did not object until 2001. Even if an oral license was granted, such a license was revocable at any time. Donald Azar, Inc. v. Muche, 326 Ga. App. 726, 755 S.E.2d 266 (2014).    Instruction in an action seeking an easement that tracked the language of O.C.G.A. § 44-9-4, given without a further clarifying instruction as to what type of "harm" would make a parol license irrevocable, was not harmful error. Carroll v. Pierce, 221 Ga. App. 805, 472 S.E.2d 560 (1996).   Easement found to be acquired.    - Where an owner of land, by a written instrument under seal, conveys to another the privilege of building a storehouse on the land, and agrees in the instrument that the grantee shall have "the use of the said property, free of rent, so long as he desires to use it," and that when the grantee and successors fail to use it as a business then the grantee shall have the privilege of selling the house or removing it, and where the grantee, upon the faith of this conveyance, incurs expense in erecting such a house upon a lot designated by the owner for the purposes contemplated by the parties, the grantee thereby acquires an easement under O.C.G.A. § 44-9-4 and such an interest in the property conveyed as is assignable by the grantee and cannot be revoked by the grantor. Ainslie v. Eason & Waters, 107 Ga. 747, 33 S.E. 711 (1899).    Under O.C.G.A. § 44-9-4, a license to prospect gold could not be revoked after the licensee, by much labor and at considerable expense, located and developed gold. Brown v. Bowman, 119 Ga. 153, 46 S.E. 410 (1903).    Under O.C.G.A. § 44-9-4, a telegraph company, which with the consent of a railroad company built its lines upon the latter's right of way, and maintained, renewed, and operated the same for 40 or 50 years, acquired a perpetual easement. Western Union Tel. Co. v. Georgia R.R. & Banking Co., 227 F. 276 (S.D. Ga. 1915).    The right to cut and remove timber, not being a mere license resting in parol, but being in writing and for a value, the licensee stands upon the footing of a purchaser for value, and the right or license is not revocable at the will of the grantor. Harrell v. Williams & Sons, 159 Ga. 230, 125 S.E. 452 (1924).    Where a parol license is granted for the opening and use of a ditch on the land of the licensor for the purpose of draining a pond on the land occupied by the licensee as a tenant, the fact that the licensee is a tenant, and not the owner of the land on which the pond is located, does not prevent the license from becoming irrevocable upon the licensee executing the license and incurring expense in so doing, at least so long as the licensee continues to exercise the license granted; and whether or not the license granted in is only personal to the licensee, or is appurtenant to the land, if the licensee subsequently purchases the land, the license in either event remains irrevocable for the licensee's benefit. Dickey v. Yarbrough, 186 Ga. 120, 197 S.E. 234 (1938).    In an action by the owners of a lot against the corporate owner of an adjoining lot and a contractor, to prevent the corporation from encroachment by inserting girders of its new building into a wall on the plaintiffs' lot, and to eject the corporation from occupation of any part of the wall, the evidence demanded a finding that the wall in question was subject to an easement in favor of the corporation, giving the latter a right of a user in the wall for support of its building. Joel v. Publix-Lucas Theater, Inc., 193 Ga. 531, 19 S.E.2d 730 (1942).    Where a purchaser of land was allowed the right to build a private way at purchaser's own expense, which was used as a means of ingress and egress to the rear of the property and which was kept in repair during the six or eight years the purchasers occupied the house that the purchaser built on the property, the purchaser obtained an easement running with the land, and the easement passed with the dominant estate to each of successors in title, unless it could be proved that the easement was forfeited or abandoned or that the successors in title to the grantor of the easement took title to the servient estate with no notice, actual or constructive, of the existence of the easement. Mathis v. Holcomb, 215 Ga. 488, 111 S.E.2d 50 (1959).    Where, by parol license, the petitioner permitted a company to dispose of its industrial waste by means of a pipe which extended for some distance on the land of the petitioner, the company thereafter discharged waste water on the land of the petitioner, and the company expended money on the faith of this parol license, the petitioner could not revoke the license, and it became an easement running with the land. It was such an easement as could be claimed by a subsequent owner of the manufacturing plant. Bell Indus., Inc. v. Jones, 220 Ga. 684, 141 S.E.2d 533 (1965).    Trial court erred by granting a guitar store summary judgment in a suit brought by a diving store to enforce an easement because there was no genuine issue of fact that the guitar store's predecessor in interest had granted the diving store a license to maintain the sign at issue on the guitar store's property in writing and money was paid, thus, the license created thereby ran with the land. Aquanaut Diving & Eng'g, Inc. v. Guitar Ctr. Stores, Inc., 324 Ga. App. 570, 751 S.E.2d 175 (2013).   Easement by estoppel.    - There was no merit to the argument that Georgia law did not recognize the concept of easement by estoppel. The ripening of a license under O.C.G.A. § 44-9-4 into an easement because of the expenditure of funds in reliance thereon had often been described as an application of the doctrine of equitable estoppel. Waters v. Ellzey, 290 Ga. App. 693, 660 S.E.2d 392 (2008).   Easement not acquired.    - Where written statement giving permission to go on land contained no legal description, it was, at best, a revocable license which never ripened into an easement because defendant did not expend money preceding use of the road. Lovell v. Anderson, 242 Ga. App. 537, 530 S.E.2d 233 (2000).    Under O.C.G.A. § 44-9-4, a car wash owner did not show that a parol license to use a gas station's property for ingress and egress had ripened into an easement running with the land; there was no evidence that the car wash's lessor built any structure on the gas station's land or invested a substantial amount in improving the gas station's land, and there was no evidence of an express license granted to the car wash by the gas station. Decker Car Wash, Inc. v. BP Prods. N. Am., Inc., 286 Ga. App. 263, 649 S.E.2d 317 (2007), cert. denied, No. S07C1692, 2007 Ga. LEXIS 767 (Ga. 2007).    Marina did not acquire an irrevocable license to access a lake and erect a dock pursuant to O.C.G.A. § 44-9-4 because even assuming that the prior dock created an irrevocable license in favor of the prior property owner, the evidence failed to show that the marina's dock fell within the property covered by the alleged license; the prior dock fell into disrepair and was no longer in existence, and the dock the marina erected was not in the same location as the prior dock. Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga. App. 366, 729 S.E.2d 510 (2012).    In a declaratory judgment action brought by adjoining landowners seeking rights to access an undeveloped lot in a subdivision for use as a soccer field, the trial court properly granted summary judgment to the property owners who had terminated the access and use of the adjoining landowners to the field. There existed no express easement to grant the adjoining landowners access, no dedication of the field was established for public use, the treatment of the field for fire ants was merely maintenance, and since the adjoining landowners had previously used the lot with permission, no prescriptive rights were established. De Castro v. Durrell, 295 Ga. App. 194, 671 S.E.2d 244 (2008).   No oral license to use land found.    - Since plaintiff pointed to no evidence of any express oral license, it followed that the trial court did not err in finding O.C.G.A. § 44-9-4 inapplicable. Parrott v. Fairmont Dev., Inc., 256 Ga. App. 253, 568 S.E.2d 148 (2002).   Trial court erred by not finding parol license.    - In a suit brought by a property owner seeking to specifically perform an oral agreement to purchase a strip of real estate, the trial court properly denied the property owner's request for an interlocutory judgment based on a violation of the statute of frauds and because another held a first right of refusal over the sale/purchase of the property. However, the trial court erred by concluding that the property owner had not obtained a parol license to use the strip since the property owner had made expenditures to improve the land and, as to the right of first refusal held by another, the grant of a parol license was not the equivalent to a sale of the property to have in anyway interfered with that right. Meinhardt v. Christianson, 289 Ga. App. 238, 656 S.E.2d 568 (2008).    Cited in Cherokee Mills v. Standard Cotton Mills, 138 Ga. 856, 76 S.E. 373 (1912); Garrard v. Milledgeville Banking Co., 168 Ga. 339, 147 S.E. 766 (1929); Frazier v. Lee, 180 Ga. 385, 178 S.E. 722 (1935); Moxley v. Adams, 190 Ga. 164, 8 S.E.2d 525 (1940); Waters v. Baker, 190 Ga. 186, 8 S.E.2d 637 (1940); United States v. 1,070 Acres of Land, 52 F. Supp. 378 (M.D. Ga. 1943); Nassar v. Salter, 213 Ga. 253, 98 S.E.2d 557 (1957); State Hwy. Dep't v. Morton, 104 Ga. App. 106, 121 S.E.2d 275 (1961); Smith v. E.B. Burney Constr. Co., 231 Ga. 772, 204 S.E.2d 93 (1974); City of Warrenton v. Johnson, 235 Ga. 665, 221 S.E.2d 429 (1975); Arrington v. Watkins, 239 Ga. 793, 239 S.E.2d 10 (1977); Strozzo v. Coffee Bluff Marina Prop., 250 Ga. App. 212, 550 S.E.2d 122 (2001).   OPINIONS OF THE ATTORNEY GENERAL   License not revocable after expenditure and improvements.   - There are cases where a license to erect a dam is not revocable after the expenditure of money and the making of improvements in pursuance thereof, and a license to cut a ditch for drainage is not revocable after the ditch has been dug at expense to the licensee. 1958-59 Op. Att'y Gen. p. 285.   Transportation department acquires permission from owner in form of license for erection of retaining wall.   - The Department of Transportation is charged with the responsibility of acquiring the proper permission from a property owner in the form of a license for the erection of a retaining wall; after permission is acquired, a wall may be erected and the original license is converted into an easement by operation of law; permission for the erection of retaining walls should be in writing in order to avoid the necessity of a factual determination by a court as to whether permission was granted in the first instance. 1971 Op. Att'y Gen. No. 71-165.   RESEARCH REFERENCES   Am. Jur. 2d.   - 25 Am. Jur. 2d, Easements and Licenses, § 137 et seq.   C.J.S.   - 28 C.J.S., Easements, §§ 10 et seq., 53 et seq., 127. 37 C.J.S., Frauds, Statute of, §§ 63, 91. 53 C.J.S., Licenses, §§ 50 et seq., 89 et seq.   ALR.    - Injunction as a proper remedy by licensor where license to use real property is revoked, 56 A.L.R. 1110.    Extinguishment or modification of easement by parol agreement, 71 A.L.R. 1370.    Physical conditions which will charge purchaser of servient estate with notice of easement, 74 A.L.R. 1250.    Roadway or pathway used at time of severance of tract as visible or apparent easement, 100 A.L.R. 1321; 164 A.L.R. 1001.    Affirmative covenants as running with land, 102 A.L.R. 781; 118 A.L.R. 982.    Right of licensee for use of real property to compensation for expenditures upon revocation of license, 120 A.L.R. 549.    License in real property as involving freeholder or title or interest in real estate, within constitutional or statutory provisions relating to jurisdiction or venue, 138 A.L.R. 147.    Parol evidence rule as applied to question of easement by necessity or visible easement, 165 A.L.R. 567.   Revocation of license to cut and remove timber as affecting rights in respect of timber cut but not removed, 26 A.L.R.2d 1194.   Duration of license in or on real property granted for a specific purpose where no period has been specified, 74 A.L.R.2d 886.   Right of owners of parcels into which dominant tenement is or will be divided to use right of way, 10 A.L.R.3d 960.