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Unofficial Opinion 95-12

Unofficial Opinion 95-12

June 30, 1995
To: 

City Attorney
City of Tifton, Georgia

Re: 

The City of Tifton may not transfer real property by deed of gift to the Tift County Recreation Department for recreational use but may transfer real property pursuant to a valid inter-governmental contract.

You have asked for my opinion on whether the City of Tifton may transfer certain real property by deed of gift to the Tift County Recreation Department for recreational use. As set forth below, it is my unofficial opinion that the city may not transfer real property without consideration, as that would violate the Georgia constitutional prohibition on gratuities, but that the city may transfer real property pursuant to a valid inter-governmental contract.

Preliminarily, you have indicated that the city owns the real property in question, that it is not currently being used for any purpose, and that it has not been used by the public for, at least, the past twenty-five years. However, you have not furnished me with information concerning the exact nature of the city's ownership interest or whether there are any restrictions on alienation, nor have you provided me with any documentation relating to the property in question or the proposed transfer, and I have not undertaken an independent review of any such documents. Rather, given your request to expedite this matter, I am necessarily relying upon your representations and assume that the city presently owns the property in fee simple without any restrictions on its ability to convey it.

The Georgia Constitution expressly permits inter-governmental contracts for the provision of services or use of facilities, where such contracts deal with activities or services which the contracting parties are authorized by law to undertake or provide. Ga. Const. 1983, Art. IX, Sec. III, Para. I. See also Ga. Const 1983, Art. IX, Sec. II, Para. III(a)(5) (authorizing counties and municipalities to provide park and recreation services and facilities). In the absence of such a contract between the city and the County Recreation Department regarding the recreational use of the property in question, the proposed transfer would violate Ga. Const 1983, Art. III, Sec. VI, Para. VI which prohibits gratuities. Accordingly, my unofficial opinion incorporates the assumption that a valid inter-governmental contract exists, or will be executed, in order to consummate this proposed transaction between the city and the county concerning the recreational use of the property in question.

Assuming an inter-governmental contract exists, the question becomes whether the city may lawfully convey the property. See Nations v. Downtown Dev. Auth., 256 Ga. 158, 161 (1986). There is a presumption that all property held by a municipal corporation is for the public use and benefit of its citizens (see O.C.G.A. § 36-33-6), and the general rule is that such property cannot be conveyed absent either express legislative authority or a finding that the public use has been abandoned or that the property has become unsuitable or inadequate for the purpose to which it was dedicated. See, e.g., Department of Transp. v. City of Atlanta, 255 Ga. 124, 127 (1985); Harper v. City Council, 212 Ga. 605, 607-608 (1956); City Council v. Newsome, 211 Ga. 899 (1955); Norton v. City of Gainesville, 211 Ga. 387, 390 (1955); Kirkland v. Johnson, 209 Ga. 824, 825 (1953). See also 1992 Op. Att'y Gen. U92-9; 1984 Op. Att'y Gen. U84-20.

While there is an exception to the general rule for property held by a municipal corporation for use by it as an entity, or in its proprietary or private capacity, as opposed to property held by it for the public use and benefit of its citizens (Harper, 212 Ga. at 607-608; Norton, 211 Ga. at 390; Kirkland, 209 Ga. at 825; 1992 Op. Att'y Gen. U92-9; 1984 Op. Att'y Gen. U84-20), the use of a particular parcel of property is ordinarily a question of fact which may require intervention of a court at an evidentiary hearing. Jonesboro Area Athletic Ass'n v. Dickson, 227 Ga. 513, 516 (1971). However, with respect to your inquiry, the status of the property in question, as proprietary or for the public use and benefit, is immaterial because it appears the city has express authority to convey the property regardless of its use. Specifically, Section 4 of the City Charter which you sent to me, relating to the city's "Corporate Powers," states, in pertinent part:

The corporate powers of the government of the City of Tifton, to be exercised by the governing authority, may include the following:

. . . .

(e) To acquire, dispose of and hold in trust or otherwise any real, personal or mixed property in fee simple or lesser interest inside or outside the property limits of the city.

(Emphasis added.)

Construing city charters containing language similar to the foregoing, the Georgia Supreme Court has consistently held that such provisions authorize a city to convey property which it holds for the public use and benefit. See Frazer v. City of Albany, 245 Ga. 399 (1980); McPherson v. City of Dawson, 221 Ga. 861 (1966). Compare Jonesboro Area Athletic Ass'n v. Dickson, supra; 1992 Op. Att'y Gen. U92-9. Further, I would note that the proposed inter-governmental transfer, as described in your letter, is exempt from the requirement of competitive bidding pursuant to O.C.G.A. § 36-37-6(e)(2)(D).

In summary, based on the limited information you have given me and the assumptions set forth above, it is my unofficial opinion that the City of Tifton may not transfer real property by deed of gift to the Tift County Recreation Department for recreational use but may transfer real property pursuant to a valid inter-governmental contract.

Prepared by:

MATTHEW P. STONE
Assistant Attorney General