501 B.R. 808
Bankr. N.D. Ga.2013Background
- Flyboy Aviation Properties, LLC owns a private airport (Airport Property) in Suwanee, GA; Richard Franck owns adjacent subdivision property and claims a right to use the airport taxiways/runway.
- Original state-court dispute (2008) over trespass and injunction; Flyboy filed Chapter 11 in 2013 and removed the case; bankruptcy court bifurcated and tried only the question of Franck’s interest in the property.
- Franck’s predecessor (Musgrove) purchased in 1984 and received an Addendum at closing granting use of taxiways and landing strip "as long as Mathis Airport shall continue as an airport." Musgrove later sold to Franck in 2004.
- The Addendum was not recorded until 2005 (after Flyboy bought the Airport in 2004); Franck relies on multiple theories to establish rights: express grant, prescription, necessity, implication, covenants/Declarations, adverse possession.
- Evidence showed long-standing, visible use of taxiways and hangars by subdivision residents, occasional maintenance of the subdivision road, and that Flyboy’s principal knew planes taxied on Mathis Airpark Road but performed only a title search before purchase.
- Court concluded Franck holds an express, appurtenant easement under the Addendum, which runs with the land but terminates if the Airport ceases to be used as an airport; Flyboy is charged with notice based on visible features and thus took subject to the easement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity/Existence of an express easement | Flyboy argued no enforceable easement bound it because Addendum was unrecorded before its purchase | Franck argued Addendum conveyed an easement to Musgrove and ran with the land to him | Held: Addendum created an appurtenant express easement that runs with the dominant estate and binds Flyboy because Flyboy had notice from visible features |
| Easement by prescription | Flyboy argued no prescriptive rights because use was permissive and lacked required elements (notice, repairs, width evidence) | Franck argued tacking/prior use by Musgrove plus his use established prescription | Held: Prescription failed — no notice of adverse claim, insufficient evidence of repairs, width, or seven years after notice |
| Easement by necessity / implication | Flyboy argued Franck had other reasonable access routes so no necessity | Franck argued airport/taxiway access was necessary (landlocked use for aircraft) | Held: Necessity failed — Franck had alternative access and property was not landlocked or unusable without airport access |
| Enforceability of Declarations (CC&Rs) | Flyboy argued Declarations were unenforceable (unsigned by all, no exhibits, statute of frauds, no meeting of minds) | Franck argued Declarations created covenant-based easements for subdivision owners | Held: Declarations unenforceable — vague, lacked required exhibits/description and no assent/formation of HOA |
Key Cases Cited
- In re Toledo, 170 F.3d 1340 (11th Cir. 1999) (bankruptcy court jurisdiction principles)
- Jackson v. Norfolk S. R.R., 255 Ga. App. 695 (Ga. Ct. App. 2002) (elements for prescriptive easement under Georgia law)
- McGregor v. River Pond Farm, LLC, 312 Ga. App. 652 (Ga. Ct. App. 2011) (permissive use and requirement of notice/repairs for prescription)
- Trammell v. Whetstone, 250 Ga. App. 503 (Ga. Ct. App. 2001) (tacking and privity for prescriptive periods)
- White v. Plumbing Distribs., Inc., 262 Ga. App. 228 (Ga. Ct. App. 2003) (statute of frauds and sufficiency of land description)
- Pierce v. Wise, 282 Ga. App. 709 (Ga. Ct. App. 2006) (recognition that changing modes of access may affect easement analysis)
- Moore v. Dooley, 240 Ga. 472 (Ga. 1978) (strict construction of easement by necessity and impact of sale order)
- Kiser v. Warner Robins Air Park Estates, Inc., 237 Ga. 385 (Ga. 1976) (limitations on use of appurtenant easements and intent of grantor)