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Parceled Out
by Ron Davis

A small but valuable parcel of real estate that for many years belonged to the owners of a Georgia shopping center has now become public property.

The shopping center, West Paces Ferry Shopping Center, is located in Atlanta, and its owners had since 1994 allowed an adjacent Chick-fil-A restaurant free access to the real estate parcel. The Chick-fil-A, which sits on property between West Paces Ferry Shopping Center and Parkway Place Shopping Center, had used the parcel for the convenience of its customers.

When Chick-fil-A first built on its property, it had contacted the owners of West Paces Ferry Shopping Center to request permission for the use of the real estate parcel. The owners never expressly responded. So Chick-fil-A designed its restaurant’s drive-through lanes in a manner that its traffic encroached on the shopping center property.

Chick-fil-A later entered into a reciprocal easement agreement with West Paces Ferry Shopping Center to allow a free flow of pedestrian and vehicular traffic between the adjacent shopping centers and the restaurant. Several years later, however, the owners of West Paces Ferry Shopping Center decided to more closely control traffic between their property and the Chick-fil-A. So they informed Chick-fil-A that further use of their property would be considered trespassing.

The controversy resulted in a lawsuit, and a Georgia judge decided that Chick-fil-A, because of its lengthy control of the real estate, had acquired “an irrevocable license” to its use.

The shopping center’s owners appealed that decision.

A Georgia appellate court ruled that the controversial real estate parcel should actually belong to the public. Explained the judges, “It is undisputed that the owners of West Paces Ferry Shopping Center allowed public traffic to freely use [the property] for over 20 years, and that the public did so. Under these circumstances, where the owner of land expressly dedicates the same to public use as a public road, acceptance by the public for public use is sufficient to complete the dedication without acceptance by the public authorities of the county. And where the land is so used for such a length of time that the public accommodation and private rights will be materially affected by an interruption of the enjoyment, the owner and those holding under him may not afterwards appropriate it to private purposes.” (Postnieks v. Chick-fil-A, Inc., 2007 WL 1365406 [Ga.App.])

Decision: May 2007
Published: June 2007



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