Category: Real Estate Law

NEW LAND USE AND ZONING LITIGATION REQUIREMENTS

Posted by Hecht Walker, P.C.
Posted on November 6, 2018


By Greg Hecht and Jon Jordan for Hecht Walker PC

Land Use/Zoning Litigators, like our firm, are having to implement new tactics in zoning litigation due to stalled legislation to override recent decisions by the Georgia Supreme Court extending State and local sovereign immunity to actions for injunctive relief and declaratory judgments. A primary rational for the doctrine of sovereign immunity is to protect taxpayer dollars.  However, the recent Georgia Supreme Court decisions held that sovereign immunity goes further to also prohibit non-monetary lawsuits in Georgia courts against State and county governments, or their department or agencies by citizens simply seeking judicial review of unconstitutional governmental action. The result is that property owners have extraordinarily limited review rights and property utilization rights.

In addition, it leaves individual local government officials such as County Commissioners, Mayors and City Councilpersons as the required subject of lawsuits in their individual capacities. In Ga. Dept. of Natural Resources v. Center for Sustainable Coast, 294 Ga. 593 (2014), the Georgia Supreme Court held that sovereign immunity barred lawsuits against the State, and its departments and agencies, including County governments, seeking injunctive relief against unconstitutional actions.  Two years later, the Georgia Supreme Court held that sovereign immunity even prohibited Georgia courts from deciding the constitutionality of State laws through a declaratory judgment action filed by an aggrieved citizen.  Olvera v. Univ. System of Ga. Bd. of Regents, 298 Ga. 425 (2016).  The harsh expanse of governmental sovereign immunity has left citizens wishing to protect their constitutional rights against State and local government action with virtually no other meaningful option but to file suit against lawmakers and public officials in their individual capacities.  For example, rather than file suit against a County entity to declare a county ordinance unconstitutional, such suit must now be brought against each commissioner in his/her individual capacity.

In both Sustainable Coast and Olvera, the Georgia Supreme Court explained that,

“Our decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse.  It means only that they must seek relief against such officers in their individual capacities.” Olvera, 298, Ga. 425, 427 (2016).

Movement in the General Assembly to remedy this effect by drafting legislation to waive sovereign immunity for suits seeking only prospective non-monetary relief (i.e. declaratory judgments, injunctions) stalled in the 2017 session.  Such a waiver would permit an aggrieved citizen to seek judicial review of State and local governmental actions by seeking injunctions or declaratory relief against the governmental body itself or government officials in their official as opposed to individual capacities.  The most recent bill (HB 791) however was amended to protect only State governmental officials, leaving county officials exposed to continued civil lawsuits in their individual capacities, and even this bill failed to make it to a floor vote.

The Association of County Commissioners of Georgia and the Georgia Municipal Association need to work with the Georgia Legislature as well as builders, developers and commercial property owners to solve this problem.  Otherwise, property owners, developers, and builders seeking declaratory or injunctive relief from local land use and zoning ordinances and decisions will have no choice but to sue local government officials individually as a part of their litigation.  The present state of the law requires such tactics, which are unfortunate and could be solved with legislation allowing for meaningful judicial review of State and local government decisions and ordinances by waiving sovereign immunity for suits seeking non-monetary prospective relief.

The ability of courts to issue declaratory and/or injunctive relief against State and local government actions is particularly essential to protecting against unreasonable land use and zoning decisions.   For example, we had a potential client who wanted to build a senior living center which was desperately needed, and the County Commission admitted it was desperately needed, and otherwise consistent with the surrounding land uses.  The Conditional Use Permit required for operating the senior living center was denied simply because the district Commissioner wanted the center built in another Commissioner’s district and not in his own backyard.  Meaningful judicial review is also important to protect against overreaching land use and zoning ordinances which are becoming more and more restrictive and confiscatory, taking away owners’ property rights and stifling development in the community as a whole.  We have had many clients engage our services in need of gaining relief from overreaching overlay zoning ordinances imposing development standards that prevented otherwise permitted uses by making building and development on the properties too expensive and unfeasible.  Previously, Georgia courts could consider the constitutionality of abusive land use and zoning decisions and ordinances through Declaratory Judgment actions against the County or local entity itself.  Now, as a result of the recent case law interpretations of Georgia Sovereign Immunity protection, such declaratory judgment actions must be brought against local officials in their individual capacities.

Property owners, local officials and State legislators need to work together to resolve these problems to protect individual property owners’ rights without turning constitutional review of zoning decisions into much more personal individualized lawsuits.  The Georgia Municipal Association (“GMA”) and the Association of County Commissioners of Georgia (“ACCG”) could also play a critical role in promoting and accomplishing a positive and piece of legislation protecting both land owners and local officials alike.  Until then, our firm will have no choice but to seek relief for our clients from unconstitutional land use and zoning actions through lawsuits against the public officials individually instead of against the entity they serve.  Should you have a legal matter that relates to land use, zoning, variances, permitting or takings, we would be glad to look at these matters for you and examine your potential options.

Why Is My Fulton County Property Assessment So High?

Posted by Hecht Walker, P.C.
Posted on July 7, 2018


Has there been new construction in your neighborhood? Though that new house, condo or business is a sign of your neighborhood’s good health, it could cause you tax problems. As Fulton County sends out this year’s property tax assessments, some homeowners are getting a big surprise. However, you still have options when it comes to handling your property taxes.

How High Will My Fulton County Property Assessment Get?

Property assessments for 2018 are coming in, and many homeowners in Fulton County are in for a real shock. That’s because their property taxes are likely going up thanks to increased home values and a delay in tax increases.

Last year, county commissioners decided to freeze property taxes for Fulton County homes. This has caused a leap in assessment values as the system shifts from 2016 values to 2018 values. This has many homeowners seeing an average property value increase of around 26 percent. Such an increase in values has left many residents paying hundreds, even thousands, of dollars in extra taxes this year.

How Can You Fight These Increases?

Luckily, there are still options for people who find their property taxes suddenly shooting up. Georgia law says that homes must be appraised at their market value. This means that getting an independent appraisal and appealing your property assessment could help.

Learn even more about property tax issues by following the real estate attorneys at Hecht Walker, P.C. Helping individuals and businesses navigate the complex laws of Georgia.

How Are Commercial Property Taxes Assessed?

Posted by Hecht Walker, P.C.
Posted on May 7, 2018


Depending on your location and other important factors, your property taxes will represent an important part of your overall tax payments. Property tax revenue is extremely important for a city like Atlanta’s resources and services, such as public utilities, roads, and law enforcement protection. Since property taxes are important for your city’s growth and maintenance, it’s important to know how Georgia’s local governments determine how your commercial property tax duty is assessed.

What Form of Assessment Is Used?

The most common approach for your local government to assess your commercial property taxes is to give you an income and expense form. This form will request commercial property owners to give more details on all of the income and expenses that they have acquired this past year. For your rental income, the form will ask you questions regarding your purchase of the property and if there have been any additional changes since the purchase, such as a structure improvement or structure demolition. This will help determine if there is additional property value that wasn’t accounted for in other assessments, which will then change your tax assessment. It’s also crucial that commercial property owners identify all expenses relating to their property in this form as well. Expenses can include management fees, other agency fees, any legal fees, advertising fees, payroll, insurance, utilities, supplies, repairs and maintenance, etc. Your safest bet as a business owner is to list all expenses, and then let the assessors figure out which costs are relevant or not.

Once the assessors receive your income and expense form, they use a relevant cap rate to determine what the initial value of your commercial property is. They will then take that value and calculate your expected local taxes for the upcoming year.

For commercial property owners, knowing how your local government calculates your property value will help you predict your property’s future financial worth. Knowing this process will also better prepare you for determining if you should appeal your commercial property taxes. For more information on your commercial property and taxes Contact Hecht Walker, P.C. .

How to File Your Property Tax Appeal in Atlanta

Posted by Hecht Walker, P.C.
Posted on April 7, 2018


If you have a company in a big and growing city like Atlanta, you can expect your property tax amounts to fluctuate, and they recently have probably increased dramatically. As an Atlanta business owner, you have the right to challenge the value of your property taxes that your assessors have placed on your commercial property. There is a specific property tax appeal process that Atlanta business owners should know about in case you disagree with your tax assessment.

How Does My Business File an Appeal?

First, your business must file a proper Notice of Appeal to the County Board of Tax Assessors within 45 days of your County’s Tax Assessment and Valuation notice. The Board of Assessors will review your property value and then send your business a notice of their decision. The decision will either let you know if a change will be made, or it will refer you pursue your issue further with another hearing board or an arbitration hearing. Sometimes the change that the board agrees to can still not be enough for your business, so you can ask at that point to continue the appeal, which will usually happen through a Board of Equalization appeal. If your company owns the property, keep in mind that only a licensed attorney can represent your business in court, not you as an individual.

Before going into this process, your Atlanta business should assess three things about your commercial property in order to best win your case: uniformity, sales, and finances. Before filing your appeal, locate other properties in your area that are comparable to your business. Uniformity is a big factor that can exclude your property in a tax appeal. You should also attempt to compare sales market values to other similar properties, as well as other mortgage and interest expenses. These three factors will help give a better evaluation of how high your taxes really are on your property.

Our Atlanta property tax and appeal attorneys can help you and your company through this complicated appeal process, and we can help assist you in finding out the grounds for assessing your property value. Contact us today for your consultation.

Landlord Tips for Managing Your Commercial Property

Posted by Hecht Walker, P.C.
Posted on March 21, 2018


Managing a rental property as a landlord is tough and can result in various legal problems. One of the main managing aspects of being a landlord is preventing these problems from happening or from escalating to even larger issues. Landlords and tenants should be fully aware of the basic duties of managing property, so both parties can avoid any future legal issues. Here are some landlord tips that will help prevent any future unwanted legal affairs.

 

Have a Landlord/Tenant Agreement in Writing: One of the most important landlord tips is to make sure you have any rental agreements in writing. This will create a solid landlord/tenant relationship from the beginning and will make any agreements contractual by law. Ensure that all important information is written in these contracts.

Regularly Inspect the Property: Landlords should always be inspecting the rental property for dangerous conditions. Most of the time, a landlord has legal responsibility if a tenant gets injured on the property, so regular inspections will help protect both parties from lawsuits. 

Don’t Discriminate Against Tenants: Landlords are prohibited from rejecting any prospective tenants based on race, national origin, familial status, financial history, disability or sex. Landlords are disallowed from inspecting any credit, employment, or income history based solely on discrimination. 

Give Notice Before Entering the Rental Unit: Landlords should always give previous notice (via phone call or email, for example) to their tenants if they plan on entering a rental unit for inspections or some other relevant reason. An emergency will usually override this rule.

Make Repairs Immediately: As soon as a landlord is notified of a repair needed for the rental property or for a specific rental unit, it is the landlord’s duty to repair and maintain the issue. Requests for repairs should be handled promptly, and communication of any extra costs and timelines should be made between landlords and tenants.

If you have encountered any legal issues with your rental or commercial property as a landlord, the attorneys at Hecht Walker, P.C. can help you resolve your problems. Contact our office today to speak to our attorneys at law and schedule a free consultation.

How Atlanta’s New Zoning Laws Will Affect Housing Development

Posted by Hecht Walker, P.C.
Posted on March 7, 2018


At the end of January 2018, Atlanta became the first city in Georgia to enact inclusionary zoning laws. The ordinances specifically apply to areas near the Beltline and the new Mercedes-Benz stadium. In summary, the laws demand that developers give a specific portion of units to Atlanta residents who make between 60 and 80 percent of the area’s median income. There are a few ways that these new ordinances will affect the city’s development scene.

What Do These Laws Solve for Atlantans?

Many areas in Atlanta are expecting to have residential development on various pieces of land. This has resulted in sharp increases in rent and property possession prices, which has made area residents very concerned about future affordability with limited land. Atlanta fixed the original zoning code by making it a development for workforce housing. Workforce housing is a real estate term that’s also known as affordable housing occupied by a group of profitably employed people. The goal of inclusionary zoning is to fix this problem by bringing people from all different socio-economic backgrounds into a similar community. Atlanta prides itself on its diverse culture and having a workforce housing zone will promote this inclusionary community.

The city of Atlanta has had one of the largest metropolitan population growths in the country in the last ten years. This has resulted in many different zoning laws being enacted, and these laws can be complex when there’s constant rezoning and special permits happening throughout the city. Atlanta’s government wants to keep the city as economically productive as possible, but unfortunately, many local politicians have disagreed with the new zoning campaigns. The attorneys at Hecht Walker, P.C. have experience in helping their clients address these Atlanta zoning and permitting policies. Contact us today for a consultation.

How to Prevent Wrongful Foreclosure

Posted by Hecht Walker, P.C.
Posted on February 23, 2018


Like many legal processes, the process of foreclosure can be drawn out and complicated. A foreclosure is the action of taking possession of a mortgaged property when the mortgagor fails to keep up their mortgage payments. Few people actually decide to go into foreclosure; they can’t make their payments for various reasons, such as unemployment, inability to work due to a medical condition, excessive debt, divorce, moving to another state, etc. Also, like other legal processes, it can be easy for the lender, bank, or other consultant to be accused of fraud, which in this case would be called wrongful foreclosure.

What Could Be Considered Wrongful Foreclosure?

Foreclosure fraud, or wrongful foreclosure, can occur when any party involved in the foreclosure alters, deletes, or adds something to the official documents or whole procedure. One common instance of wrongful foreclosure is forging signatures, which happens when foreclosure processing companies submit the proper documents to courts that either have not been actually signed, or have a forged signature. Forging a signature is not only a very common act of wrongful disclosure and a breach of contract, but it’s also a criminal act in many circumstances. Another aspect of wrongful disclosure is when the lender does not follow state procedure. Every state has its own set of notice requirements, property rights, judicial sale procedures, and eviction rules.

How Can I Avoid Foreclosure Fraud?

Firstly, don’t ever forge a signature. If you are confused about what you’re signing or you don’t agree with the terms listed in a document, don’t sign it or ask your attorney or your bank for more information before signing. Also, be aware of the bank possibly forging signatures; one common way they do this is by robo-signing, or blindly signing documents without checking for accuracy. Also, once you begin the foreclosure process, make sure you’re fully aware of all state procedure that would apply.

The Attorneys at Law at Hecht Walker, P.C. are here to help you through your foreclosure in Atlanta. If you suspect a wrongful foreclosure during this process, don’t hesitate to contact our attorneys for assistance.

Property Tax Appeal Deadlines Are Fast Approaching

Posted by Hecht Walker, P.C.
Posted on June 21, 2017


Higher tax assessments in Georgia have business owners and other property owners alarmed. There has been much confusion as to whether or not these recent tax hikes for property owners will stick.  According to a June 5th article in the Atlanta Journal Constitution (AJC) some Fulton County residents have seen property tax increases this year of more than fifty percent. According to Hecht Walker Principal Greg Hecht,“tax assessments typically come out in spring and early summer across the state, so this issue is currently playing out all across Georgia,”

Business owners and homeowners need to review their tax assessments to find their individual deadlines for appealing a tax assessment. All property owners should be aware that deadlines are coming up fast.

While it appears that residential property owners may have a reprieve, that may not be the case for commercial property owners. In a June 19 article, the AJC quoted Chairman of the Fulton County Board of Assessors John Eaves as saying “commercial properties will be assessed at 2017 levels.”

Hecht Walker, P.C. works on behalf of many businesses and commercial enterprises to help them appeal tax assessments, if advisable.

Business owners are likely to have a better chance at a successful appeal with the guidance of an Atlanta commercial real estate attorney with experience.  The attorneys at Hecht Walker PC focus on business and commercial clients and have represented many such clients with successful outcomes.

BEFORE YOU PAY YOUR TAXES, FIND OUT YOUR OPTIONS FOR APPEAL

To read more about how tax appeals work please take a look at the page “Atlanta Property Tax and Appeal Attorney” on our website, or you may want to read an article published in our 2014 Newsletter by Hecht Walker’s Jon Jordan, Easing the Taxing Cost of Property Ownership.* Additionally, a recent news report by WXIA News featured an interview with Dwight Robinson, the chief tax appraiser for Fulton County; the story helps explain why property taxes jumped so dramatically in Fulton County this year.

Most Georgia counties have mailed out tax assessment notices to property owners already, and your time to appeal is approaching fast if it has not already passed. You should check the date on your tax assessment notice for the appeal date. If you disagree with the county’s assessment of your commercial property’s value, you can appeal the assessment. Please contact Greg Hecht, Mark Walker, Jon Jordan or Aaron Chausmer at Hecht Walker, PC –  (404)-949-0170 if you would like their guidance to determine if you have a good case to appeal your commercial property tax assessment.  Or you may reach our commercial real estate attorneys by completing the contact form on our website. Don’t delay – get the property tax advice and the legal help you need promptly.

*Please note that the law has changed since 2014, and you should contact our law firm or another law firm on your tax appeal matter before relying on the 2014 article.

Considerations Before Terminating A Commercial Lease

Posted by Hecht Walker, P.C.
Posted on January 30, 2017


When circumstances change unexpectedly, commercial landlords and commercial tenants may seek to terminate leases prematurely for a variety of reasons, often financial. However, if a landlord or tenant does not act with sound legal advice, he/she may risk significant legal liabilities. Legal issues that can arise in relation to terminating a lease include claims of breach of contract, wrongful eviction, conversion of personal property and more.

Most commercial property leases provide a commercial landlord with early termination rights in particular circumstances. Commonly, these early termination rights include the right to terminate a lease if a tenant fails to pay rent or if a tenant violates various provisions of the lease. It is important to comply with all conditions and requirements in your lease, including lease termination provisions.  For example, lease termination provisions may provide notice and cure periods that must be honored before terminating the lease.  These provisions often require written notice to other party in breach of the lease and an opportunity to cure such breach before terminating the lease.  For example, if a tenant cures a monetary default by payment of late rent, within the notice and cure period provided for in the lease, the monetary default may not provide a basis for termination of the lease, and doing so could result in legal liability.  Lease termination notices should be delivered in accordance with the terms of the lease, as well. It is important to consult with an attorney who can assure that you are in compliance with the contractual terms of the lease and with numerous legal requirements related to severing the landlord-tenant relationship, such as the requirement for providing the tenant with a demand for possession of the property before filing for an eviction.

A Tenant, who terminates a commercial lease without authorization provided for in the lease or without other legal justification, may face significant liability for wrongful termination and breach of the Lease.  In addition to being responsible for all back rent accruing through the date of termination, some leases provide that the landlord may accelerate and charge the Tenant for all future rent that would have accrued through the lease term as well.  Often wrongful terminations by a tenant will also result in the forfeiture of any abated rent previously offered by the Landlord, which may also become due and owing upon the termination. Prior to entering into a Lease, the Tenant should review the entire lease to determine the requirements and consequences for early termination of the lease.  If possible, the Tenant should negotiate an early termination “break clause” that allows the tenant the option of an early termination under various circumstances.

A Landlord, who wrongfully terminates a lease, may likewise risk legal exposure for wrongful termination and breach of the lease.  Where the termination is followed by removing the Tenant from the premises through a legal eviction proceeding or otherwise, the Landlord may further risk exposure for wrongful eviction and potential claims for conversion of the Tenant’s property where the property remains in the Leased Premises from which the Tenant was removed.  Wrongful eviction could also arise where the Landlord lawfully terminates a Lease, but does something unlawful in the process of removing the Tenant from the Leased Premises.  A Landlord should ensure that the Lease contemplates the possible need for early termination of the Lease and should consult with legal counsel before taking action to evict a tenant.

In a perfect world, a lease would address all of the possible issues that might arise between a landlord and tenant.  On the ground in the real world, however, commercial leases often fail to address many of the actual circumstances that emerge over time. Landlords and Tenants are in the best legal position when they enter into a lease that clearly defines their rights leading up to and after termination of the Lease, and in seeking sound legal advice prior to exercising any Lease termination rights.

ARE LANDLORD SELF-HELP REMEDIES LEGAL?

When a commercial landlord must deal with a defaulting tenant, the inevitable aggravation can tempt a landlord to exercise “self-help” resolutions – like changing the locks – or otherwise removing the Tenant and his/her possession from the leased premises.  Such “self-help” strategies often involve many legal issues and practical questions which can put a landlord at risk. In Georgia, the general rule is that self-help by a landlord in removing a Tenant from a leased property may only be pursued if explicitly permitted in a commercial Lease.  Georgia does not recognize such self-help provisions in residential leases.

A commercial landlord’s self-help rights in a lease may only be exercised if such can be accomplished without force or a “breach of peace.”  Georgia law does not explicitly define what constitutes a breach of peace, and as such, there is often an unforeseen element of significant risk associated with self-help evictions.  Landlords can avoid the potential for liability in removing a tenant from leased property by consulting with an attorney and/or pursuing legal eviction proceedings.

WHAT HAPPENS TO A LEASE IF A TENANT FILES BANKRUPTCY?

The impact of a bankruptcy filing on a commercial lease will vary depending on the terms of the lease and the rights it grants to each party. However, Federal law allows a tenant who has filed bankruptcy to either assume or reject an unexpired lease within certain procedural and time limits. If the tenant assumes the lease, it remains in effect during and subsequent to the bankruptcy proceedings. A tenant in bankruptcy who assumes an unexpired lease is required to repair any outstanding defaults and satisfy all obligations spelled out by the lease.

Bankruptcy filings by a Tenant can make it more difficult and costly to evict a Tenant, and remedies to recover unpaid rent and expenses can be more limited.  Cautious commercial landlords should act promptly on pre-bankruptcy defaults – and always with the advice of an experienced Atlanta commercial real estate attorney.

PRACTICAL CONSIDERATIONS

In Georgia, Landlords and Tenants should consider thoroughly the practical ramifications of a lease termination, in addition to the legal issues and consequences.  In addition to the time and expense involved with litigation in court, termination of a lease involves the need to search for new tenants, the clean-up of the premises and removal of abandoned property, and possible new build-out requirements for the new tenant.  For Tenants, lease termination can involve business relocation costs and possible forfeiture of lease incentives. A history of early lease termination may also affect a Tenant’s ability to lease other space as well.  In order to avoid unnecessary legal consequences and better consider the practical ramifications of early termination of a lease, it is important to speak with a Georgia real estate attorney before taking action.  The real estate attorneys at Hecht Walker, P.C. have a long history of advising and assisting commercial landlords and tenants in lease termination matters and are available to discuss your legal rights in the event you are considering early termination of a commercial lease.