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“De” Fence and Offense
By Ron Davis

That old saying that “good fences make good neighbors” would definitely not apply in a recent legal squabble between an Augusta, GA, shopping center owner and his neighbor.

Both parties erected fences on their property, apparently in clear violation of mutual easements to which both had agreed. Those easements allow limited parking on each neighboring property.

The shopping center—Windsor Square—had enjoyed that parking arrangement until the neighbor remodeled a building on his property for use by the U.S. Postal Service as a post office. That development eliminated enough parking spaces to violate the easement agreement. So the shopping center owner erected a fence to prevent his neighbor from parking on center property. The neighbor vehemently protested the fence erection.

To make matters worse between the two parties, the Postal Service subsequently demanded a fenced area at the rear of the post office for the security of its vehicles. And then the Postal Service had the car of the shopping center owner towed while it was parked in that fenced secured area.

The dispute resulted in a lawsuit, with both parties claiming their easement rights had been violated.

A Georgia court ruled in favor of the shopping center owner, explaining, “The easement says what it says: that the owner of the shopping center shall have a nonexclusive right to park upon all parking areas located from time to time on the [neighboring property]. The easement does not support the argument to distinguish between parking areas established for public parking and other parking areas not established for public parking. We decline to engage in the mental gymnastics necessary to define the area at issue here as anything other than a parking area. By the terms of the easement, the shopping center owner cannot be excluded from the [neighbor’s] parking area.”

That ruling was upheld on appeal. (Kace Investments, L.P. v. Hull, 2003 WL 22159021 9 [Ga.App.])

Decision: September 2003
Published: October 2003



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