Law reviews. - For annual survey on real property, see 36 Mercer L. Rev. 285 (1984). For annual survey on law of real property, see 43 Mercer L. Rev. 353 (1991). For annual survey of real property law, see 44 Mercer L. Rev. 345 (1992). For annual survey article on real property law, see 45 Mercer L. Rev. 363 (1993). For article discussing developments in law of real property from June 1, 1996 through May 31, 1997, see 49 Mercer L. Rev. 257 (1997). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For annual survey article discussing real property law, see 51 Mercer L. Rev. 441 (1999). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For article, "The Right to Include," see 63 Emory L. J. 857 (2014).

CHAPTER 1 GENERAL PROVISIONS

Sec.

Cross references. - Venue for actions regarding determination of titles to land, Ga. Const. 1983, Art. VI, Sec. II, Para. II.

Property insurance, § 33-7-6 and Ch. 32, T. 33.

State properties code, see § 50-16-30 et seq.

Law reviews. - For article, "Georgia Title Standards," see 26 Ga. B.J. 285 (1964). For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978). For annual survey on law of real property, see 42 Mercer L. Rev. 389 (1990). For annual survey article on real property law, see 46 Mercer L. Rev. 401 (1994).

JUDICIAL DECISIONS

Individual's identity is devisable. - Right of publicity survives the death of its owner and is inheritable and devisable. Martin Luther King, Jr., Ctr. for Social Change, Inc. v. American Heritage Prods., Inc., 694 F.2d 674 (11th Cir. 1983).

RESEARCH REFERENCES

ALR. - Presumption of identity of persons from identity of name in chain of title to real property, 5 A.L.R. 428 .

Right of purchaser under land contract to anticipate time of payment fixed by contract, 17 A.L.R. 866 .

Right of vendee who enters under parol contract, to recover for improvements where vendor refuses to convey, 17 A.L.R. 949 .

Reversal as affecting purchase of property involved in suit, pending appeal without supersedeas, 36 A.L.R. 421 .

Rights as between vendor and vendee under land contract in respect of interest, 75 A.L.R. 316 ; 25 A.L.R.2d 951.

Action to recover for improvements made on land, taxes or interest paid, or lien discharged, by one who mistakenly believed himself the owner, 104 A.L.R. 577 .

Expectation by one who improved real property of acquiring title or interest in property from a third person, who in fact had neither title nor enforceable interest as supporting claim for compensation against the true owner, 148 A.L.R. 335 .

Measure and items of recovery for improvements mistakenly placed or made on land of another, 24 A.L.R.2d 11.

Marketability of title derived from or through, or affected by possible claim of, infant, 24 A.L.R.2d 1306.

Res judicata or collateral estoppel effect, in state where real property is located, of foreign decree dealing with such property, 32 A.L.R.3d 1330.

Res ipsa loquitur as to cause of or liability for real-property fires, 21 A.L.R.4th 929.

Construction and effect of "marketable record title" statutes, 31 A.L.R.4th 11.

Necessity and reasonableness of vendor's notice to vendee of requisite time of performance of real-estate sales contract after prior waiver or extension of original time of performance, 32 A.L.R.4th 8.

Specificity of description of premises as affecting enforceability of contract to convey real property - modern cases, 73 A.L.R.4th 135.

Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property "as is" or in its existing condition, 8 A.L.R.5th 312.

44-1-1. "Property" defined.

As used in this title, the term "property" means:

  1. Realty and personalty which is actually owned;
  2. The right of ownership of realty or personalty; and
  3. That which is subject to being owned or enjoyed.

    (Code 1933, § 85-101.)

History of section. - This Code section is derived from the decision in Wayne v. Hartridge, 147 Ga. 127 , 92 S.E. 937 (1917).

Law reviews. - For article, "Publicity, Liberty and Intellectual Property: A Conceptual and Economic Analysis of the Inheritability Issue," see 34 Emory L.J. 1 (1985). For article surveying real property law in 1984-1985, see 37 Mercer L. Rev. 343 (1985).

JUDICIAL DECISIONS

Salary of armed forces member is not "property" which is constructively present in every state in the Union for purposes of 42 U.S.C. § 659(a). Williamson v. Williamson, 247 Ga. 260 , 275 S.E.2d 42 , cert. denied, 454 U.S. 1097, 102 S. Ct. 669 , 70 L. Ed. 2 d 638 (1981).

Section applied to bondsman in guardianship proceeding. - There was no reason why the broad concept of property in former Code 1933, § 85-101 (see O.C.G.A. § 44-1-1 ) should not apply in construing the obligation of a bondsman in a guardianship proceeding under former Code 1933, § 49-225. Clark v. Great Am. Ins. Co., 387 F.2d 710 (5th Cir. 1967), cert. denied, 393 U.S. 825, 89 S. Ct. 86 , 21 L. Ed. 2 d 95 (1968).

Vested remainder is interest in property which may be levied upon. - Vested remainder interest in land is such an interest in property as may be levied upon under an execution, although the life estate is not terminated, and since the greater includes the less, a levy upon a described tract or parcel of land is a levy upon the whole interest therein, including all vested remainder interests where such remainder interests exist. Cox v. Hargrove, 205 Ga. 12 , 52 S.E.2d 312 (1949).

Extreme restriction on use can negate estate for years. - Certain restrictions imposed upon use of the premises under a lease can be so pervasive as to be fundamentally inconsistent with the concept of an estate for years. Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378 , 260 S.E.2d 315 (1979).

Cited in Mason v. Young, 203 Ga. 121 , 45 S.E.2d 643 (1947); Trust Co. v. S. & W. Cafeteria, 97 Ga. App. 268 , 103 S.E.2d 63 (1958); Moore v. Lindsey, 662 F.2d 354 (5th Cir. 1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Property, § 1 et seq.

C.J.S. - 73 C.J.S., Property, §§ 1, 3.

ALR. - "Property" as including business or profession, 34 A.L.R. 716 .

Oil, gas, or other mineral rights in land, apart from ownership of soil, as subject as real estate to lien of judgment against the owner of the mineral interest, 52 A.L.R. 135 .

Validity and effect of transfer of expectancy by prospective heir, 121 A.L.R. 450 .

Master and servant: regular payment of bonus to employee, without express contract to do so, as raising implication of contract for bonus, 66 A.L.R.3d 1075.

Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses, 94 A.L.R.3d 176.

44-1-2. "Realty" or "real estate" defined; extent of owner's interest in airspace.

  1. As used in this title, the term "realty" or "real estate" means:
    1. All lands and the buildings thereon;
    2. All things permanently attached to land or to the buildings thereon; and
    3. Any interest existing in, issuing out of, or dependent upon land or the buildings thereon.
  2. The property right of the owner of real estate extends downward indefinitely and upward indefinitely.

    (Orig. Code 1863, § 2197; Code 1868, § 2192; Code 1873, § 2218; Code 1882, § 2218; Civil Code 1895, § 3045; Civil Code 1910, § 3617; Code 1933, § 85-201.)

Cross references. - Obtaining title to mineral rights through adverse possession, § 44-5-168 .

Leasing mining interests in land, § 44-6-102 .

Determining ownership of gas injected into underground storage reservoir, § 46-4-58 .

Provisions regarding extent of title downward and upward indefinitely, § 51-9-9 .

Law reviews. - For article, "Timber Transactions in Georgia," see 19 Ga. B.J. 413 (1957). For article, "Timber! - Falling Tree Liability in Georgia," see 10 Ga. St. B.J. 10 (2004).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Possession is basis of all ownership, and that which man can never possess would seem to be incapable of being owned. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Ejectment not remedy for flooding by adjacent owner. - Riparian owner cannot maintain ejectment against adjacent proprietor who erects dam and floods own land. The riparian owner has a remedy by an action on the case, but the principle of this statute, that land embraces all above and below it, cannot be applied in such a case to give cause for ejectment.(see O.C.G.A. § 44-1-2 ) Ezzard v. Findly Gold Mining Co., 74 Ga. 520 , 58 Am. R. 445 (1885).

Landowner to report gain from sale to cutter of timber aftergrowth as capital gain. - Landowner, which retained the right to possess and control the land throughout the term of a timber-cutting contract, subject to the cutter's cutting rights, continued to own the land and therefore the timber, even though it granted the cutter an option to purchase the land, and the landowner could therefore report its gain from sale of aftergrowth to the cutter as capital gain rather than ordinary income under the Internal Revenue Code. Glynn Land Co. v. United States, 602 F. Supp. 346 (S.D. Ga. 1985).

Cited in Currin v. Milhollin, 53 Ga. App. 270 , 185 S.E. 380 (1936); Adams v. Chamberlin, 54 Ga. App. 459 , 188 S.E. 550 (1936); Ingram & Le Grand Lumber Co. v. McAllister, 188 Ga. 626 , 4 S.E.2d 558 (1939); Ramsey v. Kitchen, 192 Ga. 535 , 15 S.E.2d 877 (1941); Turner v. Ross, 115 Ga. App. 507 , 154 S.E.2d 798 (1967); Kirkland v. Morris, 233 Ga. 597 , 212 S.E.2d 781 (1975); United States v. Wood, 28 Bankr. 383 (N.D. Ga. 1983); S-D RIRA, LLC v. Outback Prop. Owners' Ass'n, 330 Ga. App. 442 , 765 S.E.2d 498 (2014).

Real Estate

Real property includes not only land, but all improvements. Fayette County Bd. of Tax Assessors v. Georgia Utils. Co., 186 Ga. App. 723 , 368 S.E.2d 326 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 326 (1988).

When article of personalty becomes realty. - Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that the article cannot be removed therefrom, depends upon the circumstances under which the article was placed upon the realty, the uses to which the article is adapted, and the parties who are at issue as to whether such article is realty or detachable personalty. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Until severed from land, building part of realty on which the building sits. Simpson v. Tate, 226 Ga. 558 , 176 S.E.2d 62 (1970).

Deed includes buildings. - Deed to land includes all buildings and other things permanently attached to land conveyed. Sawyer Coal & Ice Co. v. Kinnett-Odom Co., 192 Ga. 166 , 14 S.E.2d 879 (1941).

Inconsistency between parol agreement and deed. - When there is a conveyance of land by deed, containing no reservations as to the buildings, a parol understanding that the vendor retains the ownership of the buildings, with the right to enter and remove the buildings, is certainly inconsistent with the deed and ought to be excluded from the evidence. Simpson v. Tate, 226 Ga. 558 , 176 S.E.2d 62 (1970).

Building erected upon another's land, under arrangement with landowner that the building be removed when required is real estate. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Alley easement and railroad platform. - In a dispute between neighbors over the actual location of their common boundary line and the existence of easements in a disused railroad spur track and an alley, the trial court erred in declaring that the plaintiff had no express easement in the alley because as a matter of law, the plaintiffs were entitled to a declaration that they had fee simple title to the platform attached to the building and to declarations that the plaintiffs/owners had an express easement in both the spur track and the alley. 905 Bernina Avenue Cooperative, Inc. v. Smith/Burns LLC, 342 Ga. App. 358 , 802 S.E.2d 373 (2017).

Fences. - Fences permanently affixed to land constitute a part of the realty. Bagley v. Columbus S. Ry., 98 Ga. 626 , 25 S.E. 638 , 58 Am. St. R. 335 (1896).

Rail fence is part of realty. La Rowe v. McGee, 171 Ga. 771 , 156 S.E. 591 (1931).

Minerals in place are part of the land; minerals are real estate. Rockefeller v. First Nat'l Bank, 213 Ga. 493 , 100 S.E.2d 279 (1957).

Minerals are constituent elements of the land itself. Rockefeller v. First Nat'l Bank, 213 Ga. 493 , 100 S.E.2d 279 (1957).

Absolute conveyance carries all mines, minerals, and clays in and under the land conveyed. Wright v. Martin, 149 Ga. 777 , 102 S.E. 156 (1920).

Sand lying on land where deposited by forces of nature, though not actually attached to the soil, is a part of the realty. La Rowe v. McGee, 171 Ga. 771 , 156 S.E. 591 (1931).

Standing timber is constituent element of the land itself. Rockefeller v. First Nat'l Bank, 213 Ga. 493 , 100 S.E.2d 279 (1957).

Trees growing on land constitute a part of the realty. Coody v. Gress Lumber Co., 82 Ga. 793 , 10 S.E. 218 (1889); Douglass v. Bunn, 110 Ga. 159 , 35 S.E. 339 (1900); Marthinson v. King, 150 F. 48 (5th Cir. 1906); La Rowe v. McGee, 171 Ga. 771 , 156 S.E. 591 (1931); Foy v. Scott, 197 Ga. 138 , 28 S.E.2d 107 (1943).

Growing crops are a part of the land. Newton County v. Boyd, 148 Ga. 761 , 98 S.E. 347 (1919).

Mature crops. - Annual productions of crops, having matured and ceasing to draw sustenance from the earth, become personalty. Hamilton v. State, 94 Ga. 770 , 21 S.E. 995 (1894).

Nursery and nursery stock, though placed upon the land by the grantor after executing the security deed, are to be treated as a part of the realty, as between such grantor and a purchaser at the sale under the security deed. Adcock v. Berry, 194 Ga. 243 , 21 S.E.2d 605 (1942).

Manure made in the usual course of husbandry upon a farm is so attached to and connected with the realty that, in the absence of an express stipulation to the contrary, the manure becomes appurtenant to and is treated as part of the realty. La Rowe v. McGee, 171 Ga. 771 , 156 S.E. 591 (1931).

Easements for telephone lines constitute realty. In re Brinn, 262 F. 527 (N.D. Ga. 1919).

Fixtures

Definition of "fixtures". - Term "fixtures" may be deemed to embrace all those chattels which, by reason of their annexation to the land, partake both of the nature of personalty and realty, irrespective of the question whether the fixtures are removable or not. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102 , 15 S.E.2d 526 (1941).

Requisite of fixtures. - To constitute a fixture there must be annexation to realty, together with unity of title and ownership of the realty and the thing affixed. State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

General rule in Georgia is that personal property which is actually or constructively attached to real property is considered part of the realty so that an interest arises in the property under real estate law. Wright v. C & S Family Credit, Inc., 128 Bankr. 838 (Bankr. N.D. Ga. 1991).

Person owning thing annexed to land need not have fee simple title to the land. It is sufficient if the person holds an estate for years in the land or an easement or right of way over the land, and the purchaser of an interest in the land will acquire the vendor's title to the fixtures attached thereto, unless it is otherwise provided in the purchaser's contract. State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

Trade fixtures constitute exception to general rule. - General rule of common law was that articles attached to realty become a part thereof; but there was an exception to this rule in the case of trade fixtures. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Trade fixtures. - Owner of a place of trade is generally not permitted to remove trade fixtures adapted to the purpose for which the building was constructed, in the absence of an agreement to that effect entered into at the time of the sale. The fixtures will pass under the instrument which conveys title to the realty. The rule in reference to trade fixtures is applicable in cases of landlord and tenant, or when the occupant is in for a limited time; but it generally has no application whatever between a grantor and grantee. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Scale installed in tobacco warehouse is fixture. - When a scale is installed in a tobacco warehouse at the time of its erection, placed on and attached under the warehouse constructed for the particular scale, fitted in an opening in the warehouse floor made for the scale, and attached to the warehouse floor, and has been located in the building for 10 years or more, and the warehouse could not be operated without the scale, the jury can find that the scale is a permanent fixture and part of the warehouse building, and that the scale passes with a conveyance of such building made by the owner, even though the building is owned by one person and the land on which the building is located is owned by another. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Speaker system installed in nightclub was fixture. - Building tenant, a nightclub, was not entitled to the proceeds of an insurance policy that was plainly and unambiguously payable to the mortgage holder of the building after it was damaged by fire. In the absence of evidence that a speaker system destroyed by the fire was not a fixture, the tenant was not entitled to reimbursement for its loss. Club Libra, Inc. v. R. L. King Props., LLC, 324 Ga. App. 547 , 751 S.E.2d 418 (2013).

Motive-power pump and engine used for pumping water out of artesian well and the pipes and other accessories connected therewith, installed on premises for the purpose of furnishing water, is ordinarily considered a part of the real estate. Blain v. Corbin, 51 Ga. App. 472 , 180 S.E. 854 (1935).

Water pumping equipment deemed part of land benefitted. - Water pump and gasoline motor installed upon a low piece of land for the specific purpose of supplying water to another and adjacent higher lot is, in purpose and method of its utilization, so associated with the lot of land where the pipes convey the water and for the use of which the pump was installed that the fixture is to be regarded as legally annexed, that is, a fixture, to the higher land rather than to the lot of land on which the fixture is actually installed. Blain v. Corbin, 51 Ga. App. 472 , 180 S.E. 854 (1935).

Reservation of right to remove annexed articles. - Right to remove annexed articles as personalty may be reserved in instrument conveying title to realty, or by an agreement extrinsic and collateral. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Sale of wrongfully removed fixture to innocent purchaser. - When furnace is a chattel attached to the realty, as an irremovable fixture, and when, after the execution of a security deed, it is detached and carried away by the grantor, an action will lie for the furnace's recovery. The fact that it was subsequently attached to the realty of the grantor in another county and this realty was sold to an innocent purchaser does not deprive the innocent owner of the property merely because some other person may be the innocent purchaser who is ignorant of plaintiff's ownership. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102 , 15 S.E.2d 526 (1941).

Personalty affixed to realty termed "fixture" when transfer in doubt. - If the parties intend only to convey realty, the term "fixtures" is the accepted terminology if there is any doubt as to whether personalty affixed to the realty is to be transferred. San Joi, Inc. v. Peek, 140 Ga. App. 397 , 231 S.E.2d 145 (1976).

Fixtures on leased property tax exempt. - Improvements on leased property were fixtures and were not taxable as personal property. Fulton County Bd. of Assessors v. McKinsey & Co., 224 Ga. App. 593 , 481 S.E.2d 580 (1997).

Intent as to permanency or attachment open to investigation. - While the law classifies articles, the law at the same time recognizes their ambiguous or variable character and permits the parties to class the articles differently in different instances. The element of intention enters into the question of permanency, whether of attachment or placing, and the intention is open to investigation by parol evidence. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854 , 169 S.E. 115 (1933).

House passed with land in foreclosure action. - House's owner who moved the house onto a lot owned by another failed to state a claim against a lender for wrongful foreclosure of the owner's house along with the lot because, under Georgia law, real estate included all lands and the buildings thereon, O.C.G.A. § 44-1-2(a)(1), so the house passed with the land. Jurden v. HSBC Mortg. Corp., 330 Ga. App. 179 , 765 S.E.2d 440 (2014).

Extent to which machine a fixture is question for jury. - When some of the machinery is shown not to be attached to the building other than by wires and pipes by which power is applied, others are not attached in any way to the building, and still others are attached, the case is a question for the jury. The issue is a question of fact, not a question of law. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854 , 169 S.E. 115 (1933).

Airspace

One who owns the soil owns also to the sky. - Ownership above the surface was based upon the common law maxim, cujus est solum ejus est usque ad coelum - who owns the soil owns also to the sky. Former Code 1933, §§ 85-201 and 105-409 (see O.C.G.A. §§ 44-1-2 and 51-9-9 ) should therefore be construed in light of the authoritative content of the maxim itself. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Limited to common law interpretation. - Even if former Code 1933, §§ 85-201 and 105-409 (see O.C.G.A. §§ 44-1-2 and 51-9-9 ) were intended to express the ad coelum doctrine in its entirety, it remains true that the maxim can have only such legal signification as it brings from the common law. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Title includes only space seized and appropriated. - Language of former Code 1933, §§ 85-201 and 105-409 (see O.C.G.A. §§ 44-1-2 and 51-9-9 ) that the title to land extends upwards indefinitely would seem to be a limitation upon the ad coelum doctrine, indicating by implication that the title will include only such portions of the upper space as may be seized and appropriated by the owner of the soil. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Title to land does not necessarily confer title to space far above. - In order to recover for a trespass, it is necessary to show title or actual possession. The space in the far distance above the earth is in actual possession of no one, and, being incapable of such possession, title to the land beneath does not necessarily include title to such space. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934); Delta Air Corp. v. Kersey, 193 Ga. 862 , 20 S.E.2d 245 (1942).

Height to which landowner has title and control. - Landowner has title to and right to control air space above the land to a distance of at least 75 feet above the landowner's buildings thereon, but the landowner's title to the air space above the landowner's land is not necessarily limited to an altitude of that height. Scott v. Dudley, 214 Ga. 565 , 105 S.E.2d 752 (1958).

Landowner has first claim to space overhead. - Space is up there, and the owner of the land has the first claim upon the space. If another should capture and possess the space, as by erecting a high building with a fixed overhanging structure, this alone will show that the space affected is capable of being possessed, and consequently the owner of the soil beneath the overhanging structure may be entitled to ejectment or to an action for trespass. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Owner of land is preferred claimant to airspace above the land, and the landowner is entitled to redress for any use thereof which results in injury to the landowner or the landowner's property. Scott v. Dudley, 214 Ga. 565 , 105 S.E.2d 752 (1958).

Right to complain of use tending to diminish enjoyment of soil beneath. - Legal title can hardly extend above an altitude representing the reasonable possibility of man's occupation and dominion, although as respects the realms beyond this the owner of the land may complain of any use tending to diminish the free enjoyment of the soil beneath. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934); Delta Air Corp. v. Kersey, 193 Ga. 862 , 20 S.E.2d 245 (1942).

Occupant of the soil is entitled to be free from danger or annoyance by any use of the superincumbent space, and for any use infringement of this right the occupant may apply to the law for appropriate redress or relief. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Airplane pilot does not seize and hold space or stratum of air through which the pilot navigates, and cannot do so. The pilot is merely a transient, and the use to which the pilot applies the ethereal realm does not partake of the nature of occupation in the sense of dominion and ownership. So long as the space through which the pilot moves is beyond the reasonable possibility of possession by the occupant below, the pilot is in free territory, not as every or any man's land, but rather as a sort of "no man's land." Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

Trespass by aircraft a question of altitude. - Flight of aircraft across the land of another cannot be said to be a trespass without taking into consideration the question of altitude. It might or might not amount to a trespass according to the circumstances, including the degree of altitude, and even when the act does not constitute a trespass, it could be a nuisance, as if it "worketh hurt, inconvenience, or damage," to the preferred claimant, namely, the owner of the soil, or to a rightful occupant thereof. Thrasher v. City of Atlanta, 178 Ga. 514 , 173 S.E. 817 (1934).

When aircraft flights constitute nuisance. - When the evidence showed that at least 75 flights were made over the plaintiff's school building daily at altitudes of from 50 to 75 feet, just over the top of plaintiff's trees, that the danger necessarily created thereby to the life and safety of those occupying plaintiff's premises, the noise and vibration caused thereby, and the distracting effect on plaintiff's students made further operation of plaintiff's school impracticable, and that by such flights the right to enjoy freely the use of plaintiff's property has been substantially lessened, a continuing nuisance was established which equity would enjoin. Scott v. Dudley, 214 Ga. 565 , 105 S.E.2d 752 (1958).

OPINIONS OF THE ATTORNEY GENERAL

For listing of numerous items to be considered as fixtures and as part of realty, see 1969 Op. Att'y Gen. No. 69-90.

Trees or timber are part of realty and remain such until severed. Once severed, trees or timber become personal property. 1958-59 Op. Att'y Gen. p. 379.

Advertisement sign per se is personal property, but when placed with the intention that the sign remain permanently in that place, the sign may be considered as part of the realty. 1970 Op. Att'y Gen. No. 70-163.

Mobile homes. - Mobile home can be considered as part of the realty when it is placed on the property with the intent that the mobile home remain permanently in place and that the mobile home pass as part of the realty when conveyed. In order to determine what the intent was with respect to the mobile home, all of the surrounding facts and circumstances should be considered in each case as outward manifestations of what was in fact intended. 1969 Op. Att'y Gen. No. 69-316.

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Property, §§ 13 et seq., 48, 49.

C.J.S. - 73 C.J.S., Property, §§ 18, 21 et seq.

ALR. - Scope and import of term "owner" in statutes relating to real property, 2 A.L.R. 778 ; 95 A.L.R. 1085 .

Oil and gas or other mineral rights in land as affected by language in conveyance specifying purpose for which the property is to be used, 5 A.L.R. 1498 ; 39 A.L.R. 1340 .

Severance of title or rights to oil and gas in place from title to surface, 29 A.L.R. 586 ; 146 A.L.R. 880 .

Storage tank or other apparatus of gasoline station as fixture, 36 A.L.R. 447 ; 52 A.L.R. 798 ; 99 A.L.R. 69 .

Garage as fixture, 36 A.L.R. 1519 .

Oil, gas, or other mineral rights in land, apart from ownership of soil, as subject as real estate to lien of judgment against the owner of the mineral interest, 52 A.L.R. 135 .

Relative rights, as between municipality and abutting landowners, to minerals, oil, and gas underlying streets, alleys, or parks, 62 A.L.R.2d 1311.

Solid mineral royalty as real or personal property, 68 A.L.R.2d 728.

Manure as real or personal property as between seller and buyer of real property, 82 A.L.R.2d 1099.

Separate assessment and taxation of air rights, 56 A.L.R.3d 1300.

Airport operations or flight of aircraft as nuisance, 79 A.L.R.3d 253.

Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.

Conveyance of land as including mature but unharvested crops, 51 A.L.R.4th 1263.

Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.

Mine tailings as real or personal property, 75 A.L.R.4th 965.

44-1-3. "Personalty" defined; status of certain stocks.

  1. As used in this title, the term "personalty" or "personal estate" means all property which is movable in nature, has inherent value or is representative of value, and is not otherwise defined as realty.
  2. Stocks representing shares in a corporation which holds lands or a franchise in or over lands are personalty.

    (Orig. Code 1863, § 2216; Code 1868, § 2211; Code 1873, § 2237; Code 1882, § 2237; Ga. L. 1882-83, p. 56, § 1; Ga. L. 1893, p. 35, § 1; Civil Code 1895, § 3070; Civil Code 1910, § 3646; Code 1933, § 85-1701.)

Law reviews. - For comment on Grant v. Haymes, 164 Ga. 371 , 138 S.E. 892 (1927), see 1 Ga. L. Rev. No. 2, p. 45 (1927).

JUDICIAL DECISIONS

Movable fixtures are considered personal property. McCall v. Walter, 71 Ga. 287 (1883).

Shares of corporate stock are personalty. Hamil v. Flowers, 133 Ga. 216 , 65 S.E. 961 (1909).

Shares of stock as personalty. - Shares of stock of domestic corporation, certificates of which are held by foreign corporation as transferee, are personalty. People's Nat'l Bank v. Cleveland, 117 Ga. 908 , 44 S.E. 20 (1903).

Stock in a nonresident railroad corporation owned by a domestic railroad is personal property. Wright v. Louisville & N.R.R., 195 U.S. 219, 25 S. Ct. 16 , 49 L. Ed. 167 (1904); Greene County v. Wright, 126 Ga. 504 , 54 S.E. 951 (1906).

Bond for title is personalty. Copeland v. Pyles, 25 Ga. App. 95 , 102 S.E. 552 (1920).

Movable safe. - Since a safe was not attached to the building and was movable at pleasure upon the safe's rollers, with no injury to any part of the building, the evidence did not demand finding that the safe was a fixture. Cozart v. Johnson, 181 Ga. 337 , 182 S.E. 502 (1935).

Value of personalty including stock shares were recoverable. - Trial court was authorized to award a wife cash and stock as proceeds after a cooperative converted to a publicly held company as: (1) the wife was entitled to receive the value of the equity account for the years 1987 to 1993 as consideration for the relinquishment of the interest the wife held in the real estate; (2) such was consistent with the intent and spirit of the final decree; and (3) to rule otherwise would have left the wife with an illusory or meaningless asset. Cason v. Cason, 281 Ga. 296 , 637 S.E.2d 716 (2006).

Cited in Woodcliff Gin Co. v. Kittles, 173 Ga. 661 , 161 S.E. 119 (1931); Evans v. Pennington, 177 Ga. 56 , 169 S.E. 349 (1933); DeFoor v. State, 233 Ga. 190 , 210 S.E.2d 707 (1974); Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981); United States v. Wood, 28 Bankr. 383 (N.D. Ga. 1983); Chancellor v. Gateway Lincoln-Mercury, Inc., 233 Ga. App. 38 , 502 S.E.2d 799 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Mobile homes. - Mobile home can be considered as part of the realty when the mobile home is placed on the property with the intent that the mobile home remain permanently in place and that the mobile home pass as part of the realty when conveyed. In order to determine what the intent was with respect to the mobile home, all of the surrounding facts and circumstances should be considered in each case as outward manifestations of what was in fact intended. 1969 Op. Att'y Gen. No. 69-316.

Advertisement sign per se is personal property, but when placed with the intention that the sign remain permanently in that place, it may be considered as part of the realty. 1970 Op. Att'y Gen. No. 79-163.

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Property, § 21.

C.J.S. - 73 C.J.S., Property, § 32 et seq.

ALR. - Larceny by finder of property, 36 A.L.R. 372 .

Solid mineral royalty as real or personal property, 68 A.L.R. 728 ; 99 A.L.R. 486 .

What passes under term "personal estate" in will, 53 A.L.R.2d 1059.

Manure as real or personal property as between seller and buyer of real property, 82 A.L.R.2d 1099.

Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files, or systems, 51 A.L.R.4th 971.

Conveyance of land as including mature but unharvested crops, 51 A.L.R.4th 1263.

Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.

Mine tailings as real or personal property, 75 A.L.R.4th 965.

44-1-4. "Estate" defined.

As used in this title, the term "estate" means the quantity of interest which an owner has in real or personal property. Any estate which can be created in realty may be created in personalty.

(Orig. Code 1863, § 2225; Code 1868, § 2219; Code 1873, § 2245; Code 1882, § 2245; Civil Code 1895, § 3080; Civil Code 1910, § 3656; Code 1933, § 85-104.)

Law reviews. - For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

JUDICIAL DECISIONS

Common law rule. - Former Civil Code 1895, §§ 3080 and 3101 (see O.C.G.A. §§ 44-1-4 and 44-6-63 [repealed]) were a codification of the old law. Collins v. Smith, 105 Ga. 525 , 31 S.E. 449 (1898).

"Estate" and the "character of the estate," according to our laws and common understanding, have reference to the interest in the property, to wit: an estate for years, an estate for life, an estate in remainder vested or contingent, and an estate in fee simple. DeVaughn v. McLeroy, 82 Ga. 687 , 10 S.E. 211 (1889).

Realty and personalty are different kinds of property, but not different kinds of estates. DeVaughn v. McLeroy, 82 Ga. 687 , 10 S.E. 211 (1889).

No distinction as to bequest of personalty and devise of realty. Winn v. Tabernacle Infirmary, 135 Ga. 380 , 69 S.E. 557 , 32 L.R.A. (n.s.) 512 (1910).

Ownership is necessary for estate. - In order for there to be an estate, there must be ownership of an interest in the property. Henson v. Airways Serv., Inc., 220 Ga. 44 , 136 S.E.2d 747 (1964).

When lessee has only right of possession and use of the leased premises, not a proprietary interest therein, there is no "merger of estates" pursuant to O.C.G.A. § 44-6-2 when the lessee purchases the subject property. Life Chiropractic College, Inc. v. Carter & Assocs., 168 Ga. App. 38 , 308 S.E.2d 4 (1983).

Estate may be created in money. - Any estate that can be created in realty may be created in personalty, and this includes money. Hicks v. Wadsworth, 57 Ga. App. 529 , 196 S.E. 251 (1938).

Gift of whole estate includes money of the estate. Thornton v. Burch, 20 Ga. 791 (1856).

Remainder may be created in money since money is an estate or the part of an estate. Crawford v. Clark, 110 Ga. 729 , 36 S.E. 404 (1900).

Former Civil Code 1910, §§ 3736 and 3737 applied to personalty as well as to realty by virtue of the provisions of former Civil Code 1910, § 3656 (see O.C.G.A. § 44-1-4 ). Hubbard v. Bibb Brokerage Co., 44 Ga. App. 1 , 160 S.E. 639 (1931).

Power of appointment is not an absolute right of property. It is not an estate, and has none of the elements of an estate. Patterson & Co. v. Lawrence, 83 Ga. 703 , 10 S.E. 355 (1889).

Effect of converting realty to personalty on nature of remainder interest. - Conversion of land into personalty does not change the character of the estate from vested to a contingent remainder, because estate or character of estate means quantity of interest and not character of property. DeVaughn v. McLeroy, 82 Ga. 687 , 10 S.E. 211 (1889).

Life estate may be created in personal property, with the limitation that the life estate may not be created in such property as is destroyed in the use. First Nat'l Bank v. Geiger, 61 Ga. App. 865 , 7 S.E.2d 756 (1940).

Cited in National Fin. Co. v. Citizens Loan & Sav. Co., 184 Ga. 619 , 192 S.E. 717 (1937); Ward v. McGuire, 213 Ga. 563 , 100 S.E.2d 276 (1957); Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960); J.B. McCrary Co. v. Peacock, 223 Ga. 476 , 156 S.E.2d 57 (1967); Sams v. McDonald, 117 Ga. App. 336 , 160 S.E.2d 594 (1968); Bryant v. Bryant, 224 Ga. 360 , 162 S.E.2d 391 (1968).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 1 et seq.

C.J.S. - 31 C.J.S., Estates, § 4. 73 C.J.S., Property, §§ 8 et seq., 16.

ALR. - Validity and effect of transfer of expectancy by prospective heir, 121 A.L.R. 450 .

Right of survivor of parties to bank account in their joint names as affected by provision excluding his right of withdrawal during the lifetime of the other party, 155 A.L.R. 1084 .

Proceeds or derivatives of real property held by entirety as themselves held by entirety, 22 A.L.R.4th 459.

44-1-5. "Title" defined.

As used in this title in referring to property, the term "title" signifies the means whereby a person's right to property is established.

(Orig. Code 1863, § 2320; Code 1868, § 2317; Code 1873, § 2348; Code 1882, § 2348; Civil Code 1895, § 3208; Civil Code 1910, § 3796; Code 1933, § 85-102.)

Law reviews. - For article discussing the problems with acquiring good title, see 15 Ga. B.J. 281 (1953). For article advocating the adoption of a marketable title statute in Georgia, see 16 Ga. B.J. 263 (1954).

JUDICIAL DECISIONS

"Title" means provable right to own. - For practical purposes, the word "title" means the provable right to own particular property, and in its broader sense includes the proof by which that right may be established. National Fire Ins. Co. v. King, 49 Ga. App. 457 , 176 S.E. 64 (1934).

Definition of "color of title". - Color of title may be defined as being a writing, upon the writing's face professing to pass title, but which does not do it, either from want of title in the person making the writing, or from the defective conveyance that is used - a title that is imperfect, but not so obviously that it would be apparent to one not skilled in law. Beverly v. Burke, 9 Ga. 44 , 54 Am. Dec. 351 (1851).

One in possession of property and entitled to the legal title has sole and unconditional ownership as well as title in fee simple. National Fire Ins. Co. v. King, 49 Ga. App. 457 , 176 S.E. 64 (1934).

Effect of parol evidence of payment. - When a plaintiff in ejectment shows by parol that the plaintiff bought and paid for the land in full and received the property under the plaintiff's possession, the plaintiff is clothed with such a perfect equity as would amount to legal title. National Fire Ins. Co. v. King, 49 Ga. App. 457 , 176 S.E. 64 (1934).

Bank deposits intended to be treated as cash. - When money, or drafts and checks deposited with the intention they be treated as cash, is placed in a bank on general deposit, title passes immediately to the bank. Foster v. People's Bank, 42 Ga. App. 102 , 155 S.E. 62 (1930).

Title by capture during war can only be set up by the organized and recognized parties to the war, or by those claiming and acquiring title from the organized and recognized parties. Worthy v. Kinamon, 44 Ga. 297 (1871); Huff v. Odom, 49 Ga. 395 (1873).

Cited in Tucker Fed. Sav. & Loan Ass'n v. Alford, 169 Ga. App. 38 , 311 S.E.2d 229 (1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Property, § 29.

C.J.S. - 73 C.J.S., Property, § 55 et seq.

ALR. - Severance of title or rights to oil and gas in place from title to surface, 29 A.L.R. 586 ; 146 A.L.R. 880 .

Marketable title, 57 A.L.R. 1253 ; 81 A.L.R.2d 1020.

Right of holder of bond or other instrument representing or based upon assessment for benefits or improvement, to purchase tax sale, or acquire tax title and hold same in his own right as against owner of land, 123 A.L.R. 398 .

Right to inundate land as rendering title thereto unmarketable, 15 A.L.R.2d 966.

Abstracter's duty and liability to employer respecting matters to be included in abstract, 28 A.L.R.2d 891.

44-1-6. What things considered fixtures; movable machinery as personalty; effect of detachment from realty.

  1. Anything which is intended to remain permanently in its place even if it is not actually attached to the land is a fixture which constitutes a part of the realty and passes with it.
  2. Machinery which is not actually attached to the realty but is movable at pleasure is not a part of the realty.
  3. Anything detached from the realty becomes personalty instantly upon being detached.

    (Orig. Code 1863, §§ 2198, 2199; Code 1868, §§ 2193, 2194; Code 1873, §§ 2219, 2220; Code 1882, §§ 2219, 2220; Civil Code 1895, §§ 3049, 3050; Civil Code 1910, §§ 3621, 3622; Code 1933, § 85-105.)

Law reviews. - For article discussing lawful removal of fixtures by tenant, see 4 Ga. B.J. 16 (1942). For article on the law governing removal of trade fixtures from property in Georgia, see 19 Ga. B.J. 35 (1956). For article, "Things Attached to Realty," see 15 Mercer L. Rev. 343 (1964). For article discussing U.C.C. provisions establishing a security interest in fixtures as a means of protecting sellers, see 16 Mercer L. Rev. 404 (1965).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

What constitutes "fixtures". - It was unnecessary to go beyond former Civil Code 1895, §§ 3045, 3049 and 3050 (see O.C.G.A. §§ 44-1-2 and 44-1-6 ) to ascertain what were fixtures, and the Code was in entire harmony with the common law on the subject. Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902).

This statute does not always provide a certain and easy test by which it can be determined in a given case whether or not the article in question remains personalty, or is attached to the realty and a part thereof. Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16 , 93 S.E. 525 (1917) (see O.C.G.A. § 44-1-6 ).

Term "fixtures" may be deemed to embrace all those chattels which, by reason of their annexation to the land, partake both of the nature of personalty and realty, irrespective of the question of whether the chattels are removable or not. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102 , 15 S.E.2d 526 (1941); Slater v. Dowd, 79 Ga. App. 272 , 53 S.E.2d 598 (1949); Hargrove v. Jenkins, 192 Ga. App. 83 , 383 S.E.2d 636 (1989).

Agreement as to building does not affect nature of property. - Building erected upon the land of another under arrangement with the owner of the land that the building shall be removed when required is real estate. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Factors considered in determining whether personalty is a fixture. - Whatever is placed in a building to carry out the obvious purpose for which the building was erected, or to permanently increase its value for such purpose, and not intended to be moved about from place to place but to be permanently used with the building, becomes a part of the realty, although it may be removable without injury either to itself or the building. Waycross Opera House Co. v. Sossman, 94 Ga. 100 , 20 S.E. 252 , 47 Am. St. R. 144 (1894); Cunningham & Co. v. Cureton, 96 Ga. 489 , 23 S.E. 420 (1895); Brigham v. Overstreet, 128 Ga. 447 , 57 S.E. 484 , 10 L.R.A. (n.s.) 452, 11 Ann. Cas. 75 (1907).

Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that the article cannot be removed therefrom, depends upon the circumstances under which the article was placed upon the realty, the uses to which the article is adapted, and the parties who are at issue as to whether such an article is realty or detachable personalty. Pendley Brick Co. v. Hardwick & Co., 6 Ga. App. 114 , 64 S.E. 664 (1909); Harn v. State, 51 Ga. App. 34 , 179 S.E. 553 (1935); Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937); Goger v. United States (In re Janmar, Inc.), 4 Bankr. 4 (Bankr. N.D. Ga. 1979).

To constitute a fixture there must be annexation to the realty, together with unity of title and ownership of the realty and the thing affixed. State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

Basic issue in determining whether an article of property is considered realty or personalty is whether the article can be removed without essential injury to the freehold or to the article itself; in addition, the court must consider the intent of the parties as shown by the contract, and if there is a question of intent, that question is for the trier of fact. Brown v. United States, 512 F. Supp. 24 (N.D. Ga. 1980).

Determination of whether a particular piece of personalty has become a fixture requires analysis of three distinct factors. First, the court must consider the degree of physical attachment and removability of the article: wherever the article can be removed without essential injury to the freehold, or the article itself, it is a chattel; otherwise, it is a fixture. Second, and even more important, is the intention of the parties with respect to the article's status. Finally, a third factor that must be considered is whether the requisite unity of title between the personalty and the realty was present at the time the article allegedly became a fixture. Homac, Inc. v. Fort Wayne Mtg. Co., 577 F. Supp. 1065 (N.D. Ga. 1983).

Difficulty or ease of removal of property from premises is not determinative of its status as a fixture vel non. Goger v. United States (In re Janmar, Inc.), 4 Bankr. 4 (Bankr. N.D. Ga. 1979).

Fixtures pass by conveyance of freehold. - As between grantor and grantee the strict rule of the common law prevails that, in absence of agreement to the contrary, all fixtures, whether actually or constructively annexed to the realty, pass by a conveyance of the freehold. Wolff v. Sampson, 123 Ga. 400 , 51 S.E. 335 (1905); Brigham v. Overstreet, 128 Ga. 447 , 57 S.E. 484 , 10 L.R.A. (n.s.) 452, 11 Ann. Cas. 75 (1907).

All fixtures, whether actually or constructionally annexed to the realty, pass by a conveyance of the freehold, absent an agreement to the contrary. Kal-O-Mine Indus., Inc. v. Camp (In re Lumpkin Sand & Gravel, Inc.), 104 Bankr. 529 (Bankr. M.D. Ga. 1989), aff'd, 111 Bankr. 370 (M.D. Ga. 1990).

Applicability to mortgages. - When fixtures are erected by owner who subsequently sells or mortgages premises, this statute is peculiarly applicable. When land is conveyed, whatever fixtures are annexed to the realty at the time of the conveyance pass with the estate to the vendee, unless there be some express provision to the contrary. Fixtures pass to a bona fide purchaser of the real estate, notwithstanding an agreement between the owner of the land and the vendor of the fixtures that the fixtures should remain personal property. The same rules as to fixtures which apply as between vendor and vendee apply also as between mortgagor and mortgagee. Waycross Opera House Co. v. Sossman, 94 Ga. 100 , 20 S.E. 252 , 47 Am. St. R. 144 (1894); Cunningham & Co. v. Cureton, 96 Ga. 489 , 23 S.E. 420 (1895); Raymond v. Strickland, 124 Ga. 504 , 52 S.E. 619 , 3 L.R.A. (n.s.) 69 (1905) (see O.C.G.A. § 44-1-6 ).

Fixture becomes personalty when detached, and a cause of action in trover then arises which is not defeated when the chattel is later attached to other realty. Insilco Corp. v. Carter, 245 Ga. 513 , 265 S.E.2d 794 (1980).

Building is real estate until severed. - Until severed from the land, a building is a part of the realty on which the building sits. Simpson v. Tate, 226 Ga. 558 , 176 S.E.2d 62 (1970).

Action for trover lies for house wrongfully detached. - Under this statute, a house wrongfully detached from land and placed upon other land becomes personalty, and an action of trover will lie for the recovery. Kennedy v. Smith, 149 Ga. 61 , 99 S.E. 27 (1919); Kennedy v. Smith, 23 Ga. App. 724 , 99 S.E. 318 (1919) (see O.C.G.A. § 44-1-6 ).

Fixtures on leased property tax exempt. - Improvements on leased property were fixtures and were not taxable as personal property. Fulton County Bd. of Assessors v. McKinsey & Co., 224 Ga. App. 593 , 481 S.E.2d 580 (1997).

Effect of removal of fixtures to save from fire. - When severed from the realty and saved from fire, fixtures become personalty, but remain the property of the landlord who has the right to dispose of the fixtures as the landlord thinks proper. Pope v. Gerrard, 39 Ga. 471 (1869).

Person owning thing annexed to land need not have fee simple title to the land. It is sufficient if the person holds an estate for years in the land or an easement or right of way over the land, and the purchaser of an interest in the land will acquire the vendor's title to the fixtures attached thereto, unless it is otherwise provided in their contract. State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

When ownership of land is in one person and thing affixed to the land is in another, and the fixture is in its nature capable of severance without injury to the former, the fixture cannot, in contemplation of law, become a part of the land, but necessarily remains distinct property to be used and dealt with as personal estate. Holland Furnace Co. v. Lowe, 172 Ga. 815 , 159 S.E. 277 (1931); Stewart County v. Holloway, 69 Ga. App. 344 , 25 S.E.2d 315 (1943).

Ownership of land and fixtures different. - That an owner of an undivided interest in land buys personalty attached to the freehold, cannot render the personalty a fixture when the interests of owners in the land and the personalty are different in extent. Holland Furnace Co. v. Lowe, 172 Ga. 815 , 159 S.E. 277 (1931).

Priority of lien as to after-acquired fixtures. - When a seller of personal property, which is later affixed to realty, retains an unperfected security interest in the goods, the seller's security interest attaches upon delivery and is superior to another creditor's prior perfected security interest in existing and after-acquired personal property of the common debtor, when such after-acquired personalty is affixed to the realty as fixtures. Babson Credit Plan, Inc. v. Cordele Prod. Credit Ass'n, 146 Ga. App. 266 , 246 S.E.2d 354 (1978).

Personalty affixed to the realty, which becomes a fixture passing with the realty, is subject to the rule that an unperfected purchase money security interest prevails over a prior interest in the realty to the extent of advances made prior to attachment of the latter security interest, but not those advances made subsequent to attachment. Babson Credit Plan, Inc. v. Cordele Prod. Credit Ass'n, 146 Ga. App. 266 , 246 S.E.2d 354 (1978).

For examples of movable fixtures, see McCall v. Walter, 71 Ga. 287 (1883).

Ramps, which were part of a high-rise parking garage, constituted a fixture since the ramps were an integral part of the building and were intended to remain permanently in place. Trust Co. Bank v. Huckabee Auto Co., 58 Bankr. 826 (Bankr. M.D. Ga. 1986).

Counters and drawers in a drug store placed there by the landlord are fixtures. Pope v. Gerrard, 39 Ga. 471 (1869).

Glass show window which is permanent part of store building is not a mere trade fixture but is part of the realty. Chapman v. Silver & Bro., 18 Ga. App. 476 , 89 S.E. 590 (1916).

"Double-wide" mobile home unit which has become permanently attached to the land on which the double-wide is placed ceases to be a "vehicle" under the Motor Vehicle Certificate of Title Act, O.C.G.A. Ch. 3, T. 40, so that a security interest is obtained by recording a security deed to the land and the "improvements thereon" rather than placing a lien on the mobile home under the vehicle title act. Walker v. Washington, 837 F.2d 455 (11th Cir. 1988).

Mobile home was fixture. - Debtors' mobile home, purchased some eight years earlier and placed on the debtors' raw land, could not be considered personal property but instead needed to be considered as a fixture to the realty based on evidence that the debtors removed the tongue device for hitching the mobile home, had placed a curtain around the base of the home, and had made improvements such as landscaping and addition of a carport attached to the mobile home on the land. Williamson v. Wash. Mut. Home Loans, Inc. (In re Williamson), 387 Bankr. 914 (Bankr. M.D. Ga. 2008).

Mobile home was not a fixture. - Because a Chapter 13 debtor's evidence as to the condition of a mobile home established that the wheels, axles, and tow tongue were still attached, that the home was not sited on a permanent foundation, and that the home could be removed without real damage either to it or to the underlying realty, the home was not a fixture within the meaning of O.C.G.A. § 44-1-6(a) , the presumption in O.C.G.A. § 40-3-20 that the mobile home was a vehicle was not rebutted, and a secured creditor's interest therein was not protected from modification by 11 U.S.C. § 1322(b)(2). INGOMAR, L.P. v. Collins (In re Collins), Bankr. (Bankr. S.D. Ga. Sept. 14, 2006).

Movable safe. - When safe was not attached to the building and was moveable at pleasure upon the safe's rollers, with no injury to any part of the building, evidence did not demand finding that the safe was a fixture. Cozart v. Johnson, 181 Ga. 337 , 182 S.E. 502 (1935).

Radio tower. - When the intention of the parties was unclear as to whether a radio tower was to be a fixture and the tower was bolted to concrete slabs with bolts in each of the tower's three legs, no guy wires secured the tower, the tower apparently could be removed from the realty without damage to the land or to the radio tower by removing these bolts and disassembling the tower, and the tower had already been removed once, the tower was personal property rather than a fixture. Tidwell v. Slocumb (In re Ga. Steel, Inc.), 71 Bankr. 903 (Bankr. M.D. Ga. 1987).

Trees. - Contract of sale in regard to timber attached to the realty but to be severed before title is to pass is an executory sale of personalty. Graham v. Weil, 126 Ga. 624 , 55 S.E. 931 (1906); Clarke Bros. v. McNatt, 132 Ga. 610 , 64 S.E. 795 , 26 L.R.A. (n.s.) 585 (1909).

Cited in Jackson v. Crutchfield, 184 Ga. 412 , 191 S.E. 468 (1937); Ramsey v. Kitchen, 192 Ga. 535 , 15 S.E.2d 877 (1941); Hudgins & Co. v. Chesterfield Laundry, Inc., 109 Ga. App. 282 , 135 S.E.2d 906 (1964); Kirkland v. Morris, 233 Ga. 597 , 212 S.E.2d 781 (1975); Tifton Corp. v. Decatur Fed. Sav. & Loan Ass'n, 136 Ga. App. 710 , 222 S.E.2d 115 (1975); LSREF2 Baron, LLC v. Alexander SRP Apts., LLC, 15 F. Supp. 3d 1295 (N.D. Ga. 2013).

Trade and Domestic Fixtures

Trade fixtures exception to common law. - General rule of the common law was that articles attached to the realty become a part thereof. But there was an exception to this rule in the case of trade fixtures. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937); Stewart County v. Holloway, 69 Ga. App. 344 , 25 S.E.2d 315 (1943).

Owner of place of trade generally not permitted to remove trade fixtures adapted to purpose for which building constructed, in absence of agreement to that effect entered into at the time of the sale. In the absence of such agreement, the fixtures will pass under the instrument which conveys title to the realty. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Applicability of rule as to trade fixtures. - Rule in reference to trade fixtures is applicable in cases of landlord and tenant, or when the occupant is in for a limited time; but the rule generally has no application whatever between a grantor and grantee. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Domestic fixtures. - An electric chandelier, annunciator, and like contrivances or devices attached to the ceiling or walls of a house by a tenant, at the tenant's own expense and for the tenant's personal comfort and convenience, come within the legal definition of "domestic fixtures," when so placed that the fixtures can be readily detached without injury to the premises. Not being annexed to the rented structure with any view to their becoming permanently attached thereto as a part of the realty, the fixtures do not lose their identity as chattels. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

Only domestic or trade fixtures are personalty. - Only fixtures of a building which are personalty are trade fixtures, or domestic or ornamental fixtures. Chapman v. Silver & Bro., 18 Ga. App. 476 , 89 S.E. 590 (1916).

Intention of Parties

Intent of parties governs. - Determination of whether or not an object has become a fixture is generally governed by intent of the parties and is based upon a variety of factors. Goger v. United States (In re Janmar, Inc.), 4 Bankr. 4 (Bankr. N.D. Ga. 1979).

Articles of ambiguous or variable character. - While the law classifies articles, it at the same time recognizes their ambiguous or variable character and permits the parties to class articles differently in different instances. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854 , 169 S.E. 115 (1933).

Right to remove annexed articles as personalty may be reserved in instrument conveying title to realty, or by an agreement extrinsic and collateral. Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937).

When intent shown by unambiguous contract, personal property, though attached, remains personal property. Babson Credit Plan, Inc. v. Cordele Prod. Credit Ass'n, 146 Ga. App. 266 , 246 S.E.2d 354 (1978).

Parol agreement to allow removal inadmissible. - When there is a conveyance of land by deed containing no reservations as to the buildings, a parol understanding that the vendor retains the ownership of the houses, with the right to enter and remove the houses, is inconsistent with the deed and ought to be excluded from the evidence. Simpson v. Tate, 226 Ga. 558 , 176 S.E.2d 62 (1970).

When permanency in question, parol evidence admissible. - Element of intention enters into the question of permanency, whether of attachment or placing, and the intention is open to investigation by parol evidence. Smith v. Odom, 63 Ga. 499 (1878); United Cigar Stores v. McKenzie, 140 Ga. 270 , 78 S.E. 1006 (1913); Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854 , 169 S.E. 115 (1933).

Intention of parties is question for jury. - When it is doubtful, under all the circumstances, whether the article in question is personalty or is a fixture, the doubt is to be solved by the jury. Harn v. State, 51 Ga. App. 34 , 179 S.E. 553 (1935).

Doubt as to whether affixed personalty to be transferred. - If the parties intend only to convey realty, the term "fixtures" is the accepted terminology if there is any doubt as to whether personalty affixed to the realty is to be transferred. San Joi, Inc. v. Peek, 140 Ga. App. 397 , 231 S.E.2d 145 (1976).

Bankruptcy court could not determine on summary judgment whether bowling alley lanes and pin setters which a bank sold when the bank foreclosed on a security agreement the bank held on a bowling alley and sold the bowling alley were fixtures under O.C.G.A. § 44-1-6 because the parties executed two documents which contained evidence of a conflicting intent, and the court ordered the parties to present evidence on that issue at trial. Although the court granted the bank relief from the stay that was imposed when a corporation declared Chapter 7 bankruptcy and allowed the bank to sell the bowling alley at a private sale, the bank's description of the property prior to sale was sufficient to convey title only to real property that was part of the bowling alley, and the Chapter 7 trustee was seeking an order requiring the bank to turn over proceeds it derived from selling the debtor's personal property, pursuant to 11 U.S.C. § 542. Lubin v. Ga. Commerce Bank (In re Southern Bowling, Inc.), Bankr. (Bankr. N.D. Ga. Oct. 8, 2010).

Machinery

Construction of "movable at pleasure". - If the language of this statute, "movable at pleasure," was interpreted in a literal sense, it would apply to almost every kind of machinery, and clearly such is not the intention of the legislature. Cunningham & Co. v. Cureton, 96 Ga. 489 , 23 S.E. 420 (1895) (see O.C.G.A. § 44-1-6 ).

Parties can vary provision that machinery passes with realty. - In a conveyance of land in fee, machinery attached thereto will ordinarily pass as part of the realty. But when it is intended otherwise by the parties, and the parties enter into a written contract expressly reserving to the seller the machinery with the right to remove the machinery, such agreement will be given effect. Hunter v. Hicks, 571 F.2d 928 (5th Cir. 1978).

Dredge used by the vendor in the vendor's mining operations was a fixture and ownership passed to the purchaser under the vendor's deed. Kal-O-Mine Indus., Inc. v. Camp (In re Lumpkin Sand & Gravel, Inc.), 104 Bankr. 529 (Bankr. M.D. Ga. 1989), aff'd, 111 Bankr. 370 (M.D. Ga. 1990).

For examples of whether certain machinery passes with realty, see Smith v. Odom, 63 Ga. 499 (1879); Cunningham & Co. v. Cureton, 96 Ga. 489 , 23 S.E. 420 (1895); Brigham v. Overstreet, 128 Ga. 447 , 57 S.E. 484 , 10 L.R.A. (n.s.) 452, 11 Ann. Cas. 75 (1907); Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16 , 93 S.E. 525 (1917); J.S. Schofield's Sons Co. v. Citizens' Bank, 2 F.2d 129 (5th Cir. 1924), cert. denied, 266 U.S. 635, 45 S. Ct. 226 , 69 L. Ed. 480 (1925); Anglo-American Mill Co. v. Dingler, 8 F.2d 493 (N.D. Ga. 1925); Holland Furnace Co. v. Lowe, 172 Ga. 815 , 159 S.E. 277 (1931); Rucker v. Hunt, 44 Ga. App. 836 , 163 S.E. 612 (1932); Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854 , 169 S.E. 115 (1933); Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937); Atlanta Gas-Light Co. v. Farrell, 190 Ga. 437 , 9 S.E.2d 625 (1940); Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102 , 15 S.E.2d 526 (1941); Slater v. Dowd, 79 Ga. App. 272 , 53 S.E.2d 598 (1949).

Jury question. - If some of the machinery is shown not to be attached to the building other than by wires and pipes by which power is applied, others are not attached in any way to the building, and still others are attached, the case calls for reference to a jury. The issue is a question of fact, not a question of law. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854 , 169 S.E. 115 (1933).

OPINIONS OF THE ATTORNEY GENERAL

For listing of numerous items to be considered as fixtures and as part of realty, see 1969 Op. Att'y Gen. No. 69-90.

Advertisement sign per se is personal property, but when placed with the intention that the sign remain permanently in that place, the sign may be considered as part of the realty. 1970 Op. Att'y Gen. No. 70-163.

Mobile homes. - Mobile home can be considered as part of the realty if it is placed on the property with the intent that the mobile home remain permanently in place and that the mobile home pass as part of the realty when conveyed; in order to determine what the intent was with respect to the mobile home, all of the surrounding facts and circumstances should be considered in each case as outward manifestations of what was in fact intended. 1969 Op. Att'y Gen. No. 69-316.

RESEARCH REFERENCES

Am. Jur. 2d. - 35A Am. Jur. 2d, Fixtures, §§ 1 et seq., 26, 34, 35, 69 et seq., 115, 124, 137, 139. 63A Am. Jur. 2d, Property, §§ 12, 15, 19 et seq.

C.J.S. - 36A C.J.S., Fixtures, §§ 1 et seq., 16, 36, 51, 52. 73 C.J.S., Property, § 20.

ALR. - Rights of seller of fixtures retaining title thereto, or a lien thereon, as against purchasers or encumbrancers of the realty, 13 A.L.R. 448 ; 73 A.L.R. 748 ; 88 A.L.R. 1318 ; 111 A.L.R. 362 ; 141 A.L.R. 1283 .

Pavement, flooring, platform, walks, and the like as fixtures, 13 A.L.R. 1454 .

Storage tank or other apparatus of gasoline station as fixtures, 17 A.L.R. 1221 ; 36 A.L.R. 447 ; 52 A.L.R. 798 ; 99 A.L.R. 69 .

Garage as fixture, 36 A.L.R. 1519 .

Flagpole or other ornament in garden, yard, or park as fixture, 50 A.L.R. 640 .

Agreement with owner that annexation to land shall not become fixture as affecting rights of subsequent purchaser or mortgagee of land, 58 A.L.R. 1352 .

Electric fan as fixture, 62 A.L.R. 251 .

Pipe organ as fixture, 62 A.L.R. 368 .

Refrigerator or refrigerating plant as fixture, 64 A.L.R. 1222 ; 169 A.L.R. 478 .

Cotton gin as fixture, 70 A.L.R. 1128 .

Intention as criterion of fixtures, 77 A.L.R. 1400 .

Chattel annexed to realty as subject to prior mortgage, 88 A.L.R. 1114 ; 99 A.L.R. 144 .

Buildings erected by a tenant as "trade fixtures,", 107 A.L.R. 1153 .

Constructive annexation, for purpose of law, of fixtures where articles or parts not in themselves physically annexed are used in connection or association with articles or parts that are so annexed, 109 A.L.R. 1424 .

Fixtures as within contemplation of bulk sales or bulk mortgage act, 118 A.L.R. 847 .

Bowling alleys as fixtures, 123 A.L.R. 690 .

Nursery stock attached to the soil as real or personal property, and resulting rights, 125 A.L.R. 1406 .

Heating plant as a fixture, or as a part of or attached to realty, 126 A.L.R. 599 .

Vaults, vault doors, safes, or other repositories for valuables, or alarm system in connection therewith, as fixtures, 133 A.L.R. 427 .

Doctrine of constructive annexation as applied to plumbing material and heating apparatus delivered to premises but not installed, 10 A.L.R.2d 207.

Sprinkler system as fixture, 19 A.L.R.2d 1300.

Amusement apparatus or device as fixture, 41 A.L.R.2d 664.

Appliances, accessories, pipes or other articles connected with plumbing as fixtures, 52 A.L.R.2d 222.

Carpets, linoleum, or the like as fixtures, 55 A.L.R.2d 1044.

Electric range as fixture, 57 A.L.R.2d 1103.

Estoppel to assert that article annexed to realty is or is not a fixture, 60 A.L.R.2d 1209.

Electronic computing equipment as fixture, 6 A.L.R.3d 497.

What are "fixtures" within provision of property insurance policy expressly extending coverage to fixtures, 17 A.L.R.3d 1381.

Fence as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.

Air-conditioning appliance, equipment, or apparatus as fixture, 69 A.L.R.4th 359.

44-1-7. Possession of personalty.

Personalty is deemed to be in the possession of a party when that party's right to the property is accompanied by immediate actual or constructive possession.

(Orig. Code 1863, § 2218; Code 1868, § 2212; Code 1873, § 2238; Code 1882, § 2238; Civil Code 1895, § 3071; Civil Code 1910, § 3647; Code 1933, § 85-1702.)

JUDICIAL DECISIONS

What constitutes actual possession. - Person who knowingly has direct physical control over a thing at a given time is in actual possession of the thing. Thomas v. State, 153 Ga. App. 686 , 266 S.E.2d 335 (1980).

What constitutes constructive possession. - Person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of the thing. Thomas v. State, 153 Ga. App. 686 , 266 S.E.2d 335 (1980).

Sole and joint possession distinguished. - If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. Thomas v. State, 153 Ga. App. 686 , 266 S.E.2d 335 (1980).

Presumption of constructive possession arises from status as lessee of premises and head of household. Murray v. State, 155 Ga. App. 816 , 273 S.E.2d 219 (1980).

Possession of money may be actual or constructive. DeFoor v. State, 233 Ga. 190 , 210 S.E.2d 707 (1974).

Cited in Brewer v. State, 129 Ga. App. 118 , 199 S.E.2d 109 (1973); Graham v. State, 152 Ga. App. 233 , 262 S.E.2d 465 (1979); Chancellor v. Gateway Lincoln-Mercury, Inc., 233 Ga. App. 38 , 502 S.E.2d 799 (1998); Amaechi v. State, 306 Ga. App. 333 , 702 S.E.2d 680 (2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 13. 63A Am. Jur. 2d, Property, § 28 et seq.

C.J.S. - 73 C.J.S., Property, § 49 et seq.

ALR. - Larceny by finder of property, 36 A.L.R. 372 .

Construction of statute or ordinance making it an offense to possess or have alcoholic beverages in opened package in motor vehicle, 35 A.L.R.3d 1418.

44-1-8. Property rights in animals; factors establishing property in wild animals.

  1. Property rights may exist in all animals, birds, and fish. To constitute property in those which are wild by nature as distinguished from domestic animals, they must be in the actual possession, custody, or control of the party claiming a property interest. Possession, custody, or control of wild animals may be obtained by taming or domesticating them, by confining them within restricted limits, or by killing or capturing them.
  2. Notwithstanding subsection (a) of this Code section, no property right shall be created in wildlife as defined by Code Section 27-1-2.

    (Orig. Code 1863, § 2220; Code 1868, § 2214; Code 1873, § 2240; Code 1882, § 2240; Civil Code 1895, § 3073; Civil Code 1910, § 3649; Code 1933, § 85-1703.)

Cross references. - State ownership of wildlife located in state, § 27-1-3 .

JUDICIAL DECISIONS

Deer are not treated in law as domestic, and it would require positive or circumstantial evidence to show that a particular deer had lost the deer's natural quality of wildness by being domesticated or confined. Crosby v. State, 121 Ga. 198 , 48 S.E. 913 (1904).

Cited in Shelley v. Queen, 104 Ga. App. 837 , 123 S.E.2d 177 (1961); Blackston v. State, Dep't of Natural Resources, 255 Ga. 15 , 334 S.E.2d 679 (1985).

OPINIONS OF THE ATTORNEY GENERAL

Only state may sell game animals. - Game animals, whether held in captivity legally or illegally, may not be sold by one other than the state. 1973 Op. Att'y Gen. No. 73-35.

Domestication does not divest state's interest. - Domestication, one way of obtaining a property right under law, in and of itself cannot divest the state of the interest in game animals which the state holds in trust for all the people of the state. The possession of a domesticated game animal is still subject to all applicable laws regarding game animals. 1973 Op. Att'y Gen. No. 73-35.

Former Code 1933, §§ 85-1703 and 85-1705 (see O.C.G.A. §§ 44-1-8 and 44-1-10 ) did not conflict with state's control over and ownership of animals ferae naturae, but merely set out the method by which individuals could gain property rights in such animals when allowed to do so by the laws of the state. 1973 Op. Att'y Gen. No. 73-35.

Rights in game and wild animals depend on compliance with law. - When an individual has complied with the law and rules and regulations of the state in hunting or capturing a game or wild animal, the individual obtains a property right in the animal good against any other person. When an animal ferae naturae is captured or reduced to possession in violation of the applicable laws and rules and regulations, however, no property right vests in the person capturing or killing such animal. 1973 Op. Att'y Gen. No. 73-35.

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 14. 63A Am. Jur. 2d, Property, § 24.

C.J.S. - 3B C.J.S., Animals, §§ 8, 10.

ALR. - Pollution of oyster beds, 3 A.L.R. 762 .

Escape of wild animal from confinement as affecting property rights, 52 A.L.R. 1061 .

Right created by private grant or reservation to hunt or fish on another's land, 49 A.L.R.2d 1395.

44-1-9. Ownership of deposit and offspring by wild animals on land.

Anything deposited on realty by wild animals, birds, and fish except wildlife as defined by Code Section 27-1-2 shall belong to the owner of the realty. Honey deposited in a tree by bees shall belong to the owner of the tree even if the bees were hived by another person. The eggs and young of birds and the offspring of other animals and fish for as long as they remain unable to leave the land shall belong to the owner of the land.

(Orig. Code 1863, § 2221; Code 1868, § 2215; Code 1873, § 2241; Code 1882, § 2241; Civil Code 1895, § 3074; Civil Code 1910, § 3650; Code 1933, § 85-1704; Ga. L. 1982, p. 3, § 44.)

OPINIONS OF THE ATTORNEY GENERAL

Landowner's permission needed to cut down tree containing wild bees and honey. - One could not go upon the land of any person and cut a tree containing wild bees and honey and take the bees and honey without first having the permission and consent of the owner of the land upon which the tree is situated. 1950-51 Op. Att'y Gen. p. 318.

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Property, § 27.

C.J.S. - 3B C.J.S., Animals, § 8, 10.

ALR. - Law of bees, 39 A.L.R. 352 .

Liability for injury or damage caused by bees, 86 A.L.R.3d 829.

44-1-10. Ownership of offspring of domestic or owned animals.

The offspring of all animals follows the ownership of the mother and belongs to the owner of the mother at the time of birth.

(Orig. Code 1863, § 2222; Code 1868, § 2216; Code 1873, § 2242; Code 1882, § 2242; Civil Code 1895, § 3075; Civil Code 1910, § 3651; Code 1933, § 85-1705.)

JUDICIAL DECISIONS

Declaratory of common law. - This statute confers no additional rights on a mortgagee. It is simply a statement of the common-law rule that "the brood belongs to the owner of the dam or mother, - partus sequitur ventrem." Dixon v. Pierce, 22 Ga. App. 291 , 95 S.E. 995 (1918) (see O.C.G.A. § 44-1-10 ).

Effect of mortgage on increase of domestic animals. - Inasmuch as a mortgage in this state does not transfer title, but gives only a lien on the property included therein, a mortgage on domestic animals does not cover the increase thereof if there is no express mention of such increase in the instrument itself. Such increase may be sold by the mortgagor as the mortgagor's own, and a purchaser from the mortgagor gets a good title as against the mortgagee. Dixon v. Pierce, 22 Ga. App. 291 , 95 S.E. 995 (1918).

Payment of foaling fee or for feeding does not alone give title. - Mere fact that the defendant might have paid the foaling fee or fed colts could not give the defendant title, unless there was an express contract to this effect. Walton v. Mitchell, 11 Ga. App. 159 , 74 S.E. 1006 (1912).

Cited in Anderson & Conley v. Leverette, 116 Ga. 732 , 42 S.E. 1026 (1902); Johnson v. Stevens, 19 Ga. App. 192 , 91 S.E. 220 (1917).

OPINIONS OF THE ATTORNEY GENERAL

Former Code 1933, §§ 85-1703 and 85-1705 (see O.C.G.A. §§ 44-1-8 and 44-1-10 ) did not conflict with state's exercise of control over and ownership of animals ferae naturae, but merely set out the method by which individuals could gain property rights in such animals when allowed to do so by the laws of the state. 1973 Op. Att'y Gen. No. 73-35.

Ownership of game and wild animals. - When an individual has complied with the laws and rules and regulations of the state in hunting or capturing a game or wild animal, the individual obtains a property right in the animal good against any other person. When an animal ferae naturae is captured or reduced to possession in violation of the applicable laws and rules and regulations, however, no property right vests in the person capturing or killing such animal. 1973 Op. Att'y Gen. No. 73-35.

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Property, § 26.

C.J.S. - 3B C.J.S., Animals, § 6.

44-1-11. Application and construction of provisions relating to estates.

  1. Unless otherwise expressly provided, the provisions of this title relating to estates of either real or personal property shall be applicable to both.
  2. The rules of construction applicable to estates of personalty shall be the same as those applicable to estates of realty.

    (Orig. Code 1863, § 2225; Code 1868, § 2219; Code 1873, § 2245; Code 1882, § 2245; Civil Code 1895, § 3080; Civil Code 1910, § 3656; Code 1933, § 85-104.)

Cross references. - Estates generally, Ch. 6, T. 44.

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 1 et seq.

C.J.S. - 31 C.J.S., Estates, § 4. 73 C.J.S., Property, §§ 39 et seq., 47.

ALR. - Validity and effect of transfer of expectancy by prospective heir, 121 A.L.R. 450 .

Right of survivor of parties to bank account in their joint names as affected by provision excluding his right of withdrawal during the lifetime of the other party, 155 A.L.R. 1084 .

Proceeds or derivation of real property held by entirety as themselves held by entirety, 22 A.L.R.4th 459.

44-1-12. What constitutes perfect title.

One person may have the right of possession of certain property and another person may have the right to the property itself. A union of those rights constitutes a perfect title.

(Orig. Code 1863, § 2321; Code 1868, § 2318; Code 1873, § 2349; Code 1882, § 2349; Civil Code 1895, § 3209; Civil Code 1910, § 3797; Code 1933, § 85-103.)

Law reviews. - For article discussing the problems with acquiring good title, see 15 Ga. B.J. 281 (1953). For article advocating the adoption of a marketable title statute in Georgia, see 16 Ga. B.J. 263 (1954).

JUDICIAL DECISIONS

"Perfect title" as used in § 53-12-4 to be construed with this section. - Phrase "perfect title," as used in former Code 1933, § 108-112 was to be construed in connection with the definition of a "perfect title" given in former Code 1933, § 85-103 (see O.C.G.A. § 44-1-12 ), i.e., the union of right of property and right of possession. Sanders v. First Nat'l Bank, 189 Ga. 450 , 6 S.E.2d 294 (1939).

Rebuttable presumption of ownership. - One in possession of personal property is presumed to be the owner until the contrary appears, and the burden of rebutting the presumption is upon the party claiming adversely to the one in possession. Hattaway v. Keefe, 191 Ga. App. 315 , 381 S.E.2d 569 (1989).

Possession of a negotiable instrument is presumptive evidence of title, but it is not conclusive. Hattaway v. Keefe, 191 Ga. App. 315 , 381 S.E.2d 569 (1989).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Property, §§ 22 et seq., 31. 77 Am. Jur. 2d, Vendor and Purchaser, §§ 86, 89, 93, 96.

C.J.S. - 73 C.J.S., Property, §§ 39 et seq., 47, 49 et seq.

ALR. - Merger, as to other than intervening lienor, on purchase of paramount mortgage by owner of fee, 46 A.L.R. 322 .

Restriction forbidding manufacture or sale of liquor as breach of covenant of title or against encumbrances, or as negativing marketable title, 51 A.L.R. 1460 .

Marketable title, 57 A.L.R. 1253 ; 81 A.L.R.2d 1020.

Marketability of title derived from or through tax proceedings, 115 A.L.R. 140 .

Right of holder of bond or other instrument representing or based upon assessment for benefits or improvement, to purchase tax sale, or acquire tax title and hold same in his own right as against owner of land, 123 A.L.R. 398 .

Marketability of title as affected by question as to constitutionality of statute upon which vendor's title depends, of statute creating encumbrance or restriction upon the property, 152 A.L.R. 963 .

Vendor and purchaser: marketability of title as affected by lack or insufficiency of proof that one of the parties to an instrument or proceeding in the chain of title was not married, 161 A.L.R. 1472 ; 2 A.L.R.3d 1335.

Marketability of title as affected by fact that grantor or mortgagor in chain of title acquired complete or perfect title after conveyance, 163 A.L.R. 437 .

Modern trends as to pleading a particular cause of injury or act of negligence as waiving or barring the right to rely on res ipsa loquitur, 2 A.L.R.3d 1335.

Right to inundate land as rendering title thereto unmarketable, 15 A.L.R.2d 966.

Determination of property rights between local church and parent church body: modern view, 52 A.L.R.3d 324.

Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R.3d 1182.

44-1-13. Removal of improperly parked cars or trespassing personal property; concurrent jurisdiction; procedure; automatic surveillance prohibited; penalty.

  1. As used in this Code section, the term:
    1. "Department" means the Department of Public Safety.
    2. "Private property" means any parcel or space of private real property.

    (a.1) Any person or his or her authorized agent entitled to the possession of any private property shall have the right to remove or cause to be removed from the property any vehicle or trespassing personal property thereon which is not authorized to be at the place where it is found and to store or cause to be stored such vehicle or trespassing personal property, provided that there shall have been conspicuously posted on the private property notice that any vehicle or trespassing personal property which is not authorized to be at the place where it is found may be removed at the expense of the owner of the vehicle or trespassing personal property. Such notice shall also include information as to the location where the vehicle or personal property can be recovered, the cost of said recovery, and information as to the form of payment; provided, however, that the owner of residential private property containing not more than four residential units shall not be required to comply with the posting requirements of this subsection. Only towing and storage firms issued permits or licenses by the local governing authority of the jurisdiction in which they operate or by the department, and having a secure impoundment facility, shall be permitted to remove trespassing property and trespassing personal property at the request of the owner or authorized agent of the private property.

    1. The department shall have the authorization to regulate and control the towing of trespassing vehicles on private property if such towing is performed without the prior consent or authorization of the owner or operator of the vehicle, including the authority to set just and reasonable rates, fares, and charges for services related to the removal, storage, and required notification to owners of such towed vehicles. No storage fees shall be charged for the first 24 hour period which begins at the time the vehicle is removed from the property, and no such fees shall be allowed for the removal and storage of vehicles removed by towing and storage firms found to be in violation of this Code section. The department is authorized to impose a civil penalty for any violation of this Code section in an amount not to exceed $2,500.00.
    2. In accordance with subsection (d) of this Code section, the governing authority of a municipality may require towing and storage operators to charge lower maximum rates on traffic moving between points within such municipality than those provided by the department's maximum rate tariff and may require higher public liability insurance limits and cargo insurance limits than those required by the department. The governing authority of a municipality shall not provide for higher maximum costs of removal, relocation, or storage than is provided for by the department.
  2. In all municipalities, except a consolidated city-county government, having a population of 100,000 or more according to the United States decennial census of 1970 or any future such census a person entitled to the possession of an off-street parking area or vacant lot within an area zoned commercial by the municipality shall have the right to remove any vehicle or trespassing personal property parked thereon after the regular activity on such property is concluded for the day only if access to such property from the public way is blocked by a sturdy chain, cable, or rope stretched at least 18 inches above grade across all driveways or other ways providing access to the off-street parking area or vacant lot and there is conspicuously posted in the area a notice, the location of which must be approved by the municipality's police department, that any vehicle or trespassing personal property parked thereon which is not authorized to be in such area may be removed at the expense of the owner along with information as to where the vehicle or trespassing personal property may be recovered, the cost of said recovery, and information regarding the form of payment.
    1. In addition to the regulatory jurisdiction of the department, the governing authority of each municipality having towing and storage firms operating within its territorial boundaries may require and issue a license or permit to engage in private trespass towing within its corporate municipal limits pursuant to this Code section to any firm meeting the qualifications imposed by said governing authority. The fee for the license or permit shall be set by such governing authority. The maximum reasonable costs of removal, relocation, and storage pursuant to the provisions of this Code section shall be compensatory, as such term is used in the public utility rate-making procedures, and shall be established annually by the governing authority of each municipality having towing and storage firms operating within its territorial boundaries; provided, however, that no storage fees shall be charged for the first 24 hour period which begins at the time the vehicle is removed from the property, and no such fees shall be allowed for the removal and storage of vehicles removed by towing and storage firms found to be in violation of this Code section.
    2. Towing and storage firms operating within a municipality's corporate limits shall obtain a nonconsensual towing permit from the department and shall file its registered agent's name and address with the department. The department may assess and collect an application fee in an amount to be determined by the commissioner and such amount shall not exceed the total direct and indirect costs of administering the program or activity with which the fee is associated. Pursuant to Code Section 45-12-92.1, the fees collected shall be retained by the department and expended solely for the purpose of implementing this Code section.
  3. Any person who suffers injury or damages as a result of a violation of this Code section may bring an action in any court of competent jurisdiction for actual damages, which shall be presumed to be not less than $100.00, together with court costs. A court shall award three times actual damages for an intentional violation of this Code section.
  4. It shall be unlawful and punishable by a fine of $1,000.00 for any towing and storage firm, permitted or unpermitted, licensed or unlicensed, to enter into any agreement with any person in possession of private property to provide automatic or systematic surveillance of such property for purposes of removal and relocation of any such vehicle or trespassing personal property except upon call by such person in possession of such private property to such towing and storage firm for each individual case of trespass; provided, further, that it shall be unlawful and punishable by a fine of $1,000.00 for any towing and storage firm to pay to any private property owner or one in possession of private property any fee or emolument, directly or indirectly, for the right to remove a vehicle or trespassing personal property from said private property.

    (Ga. L. 1962, p. 146, § 1; Ga. L. 1968, p. 321, § 1; Ga. L. 1973, p. 2622, § 1; Ga. L. 1982, p. 2107, § 46; Ga. L. 1987, p. 1442, § 1; Ga. L. 1989, p. 1230, § 1; Ga. L. 1990, p. 8, § 44; Ga. L. 2003, p. 881, §§ 1, 2; Ga. L. 2005, p. 60, § 44/HB 95; Ga. L. 2005, p. 334, § 26-1/HB 501; Ga. L. 2007, p. 228, § 1/HB 316; Ga. L. 2012, p. 580, § 12/HB 865; Ga. L. 2013, p. 838, § 19/HB 323.)

The 2012 amendment, effective July 1, 2012, substituted "'Department' means the Department of Public Safety" for "'Commission' means the Public Service Commission" in paragraph (a)(1); substituted "department" for "commission" throughout this Code section; and, in paragraph (b)(2), substituted "department's" for "commission" in the middle of the first sentence, and inserted "department" in the last sentence.

The 2013 amendment, effective July 1, 2013, added the second and third sentences in paragraph (d)(2). See Editor's notes for applicability.

Cross references. - Security interests in and liens on motor vehicles generally, see § 40-3-50 et seq.

Traffic regulations pertaining to parking generally, see § 40-6-200 et seq.

Code Commission notes. - The amendment of subsections (a), (a.1), and (b) of this Code section by Ga. L. 2005, p. 60, § 44(1), irreconcilably conflicted with and was treated as superseded by Ga. L. 2005, p. 334, § 26-1. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Pursuant to Code Section 28-9-5, in 2012, "commission" was deleted following "by the" in the last sentence of paragraph (b)(2).

Editor's notes. - Ga. L. 2013, p. 838, § 20/HB 323, not codified by the General Assembly, provides, in part: "This Act shall become effective on July 1, 2013, and shall apply to violations committed on or after such date."

Administrative Rules and Regulations. - Procedure for Imposing Civil Penalties and Recommending Criminal Penalties, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Public Service Commission, Transportation, Chapter 515-16-14.

Non-Consensual Towing, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Public Service Commission, Transportation, Chapter 515-16-15.

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979).

JUDICIAL DECISIONS

Section is a codification of the common law. Although this section does require the property owner to conspicuously post a sign notifying one parked on the property that one's vehicle is subject to removal, and where such property may be recovered, this added statutory requirement was intended to aid the aggrieved party in recovering of one's vehicle, and does not in any way alter or change what was allowed at common law. Reinertsen v. Porter, 242 Ga. 624 , 250 S.E.2d 475 (1978) (see O.C.G.A. § 44-1-13 ).

Cited in Shaw v. Wheat St. Baptist Church, 141 Ga. App. 883 , 234 S.E.2d 711 (1977); Littlejohn v. Tower Assocs., 163 Ga. App. 37 , 293 S.E.2d 33 (1982); Porter v. City of Atlanta, 259 Ga. 526 , 384 S.E.2d 631 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Department of Natural Resources may remove vehicles blocking public boat launching ramps in accordance with this statute. 1970 Op. Att'y Gen. No. 70-157 (see O.C.G.A. § 44-1-13 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 3, 9, 11, 12, 52 et seq. 58 Am. Jur. 2d, Nuisances, §§ 131, 149, 218 et seq., 398 et seq., 412 et seq. 63A Am. Jur. 2d, Property, §§ 3, 27.

C.J.S. - 66 C.J.S., Nuisances, §§ 1 et seq., 178 et seq. 73 C.J.S., Property, §§ 1 et seq., 39 et seq., 47, 49, 50 et seq. 87 C.J.S., Trespass, §§ 13, 21.

44-1-14. Abatement of hazard from abandoned well or hole; recovery costs; use of county funds.

  1. As used in this Code section, the term "abandoned well or hole" means any manmade opening upon the surface of the earth which is ten feet or more in depth and which has not been used for a period of 60 days. The term does not include ditches; sand or gravel pits; stone, marble, or slate quarries; clay pits; surface mines as defined in Part 3 of Article 2 of Chapter 4 of Title 12, the "Georgia Surface Mining Act of 1968"; or geologic boreholes as defined in Part 3 of Article 3 of Chapter 5 of Title 12, the "Water Well Standards Act of 1985."
  2. Whenever it is brought to the attention of any person that an open abandoned well or hole, as defined in subsection (a) of this Code section, exists on public or private property, such person shall immediately inform the governing authority of the county in which the hazard exists. The governing authority shall inform the owner or possessor of the land upon which the hazard exists. The governing authority of any such county is authorized to use county work crews, private contractors, or any inmate labor within the county to abate the hazard either by covering, filling, or otherwise. When the hazard exists on private property, the governing authority shall first obtain the permission of the owner or possessor of the property before proceeding with any action in regard to abating the hazard existing on the private property. Upon approval by the owner or possessor of the private property, the governing authority may use county work crews, private contractors, or inmate labor; but in no case shall any work other than making the hazard safe be done on private property.
  3. If the abandoned well or hole is located on private property and the owner or possessor of the property cannot be located or is not known, the governing authority of the county may abate the hazard without the prior approval of the owner or possessor.
  4. The governing authority of the county is authorized to recover the reasonable costs of filling or covering the abandoned well or hole located on private property from the owner or possessor of said property.
  5. The governing authority of the county is authorized to expend county funds to accomplish the purpose of this Code section.

    (Ga. L. 1965, p. 446, §§ 1, 2; Ga. L. 1986, p. 922, § 1; Ga. L. 1987, p. 3, § 44; Ga. L. 1988, p. 13, § 44; Ga. L. 1992, p. 6, § 44.)

Cross references. - Abatement of nuisances generally, Ch. 2, T. 41.

Rules and regulations relating to hiring out of inmates, see § 42-5-60 .

Law reviews. - For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).

JUDICIAL DECISIONS

Jury instruction on duty to fill wells properly denied. - Trial court properly refused defendant's request for a jury charge on the duty to fill in abandoned wells since the requested charge was not accurate and was not adjusted to the evidence. McCoy v. State, 262 Ga. 699 , 425 S.E.2d 646 (1993).

Covered hole not "open" abandoned well. - Because an abandoned well on the landowners' property, which had been covered over, did not become an "open" abandoned well or hole until after an injured person's leg fell through into the hole, the landowners did not violate O.C.G.A. § 44-1-14 . Sisson v. Elliott, 278 Ga. App. 156 , 628 S.E.2d 232 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Taxation for purpose of abating pollution of wells. - County is authorized to collect and levy taxes for the purpose of abating the disposal of pollutants into wells by closing the wells. 1983 Op. Att'y Gen. No. U83-42.

County work crews composed of inmates can be utilized to enter upon private property to close abandoned wells or holes. 1983 Op. Att'y Gen. No. U83-42.

RESEARCH REFERENCES

Am. Jur. 2d. - 57 Am. Jur. 2d, Municipal, County School, and State Tort Liability, §§ 120, 124, 136, 137. 58 Am. Jur. 2d, Nuisances, §§ 8 et seq., 70 et seq., 79, 80, 82, 102, 106, 107, 113, 117 et seq., 156, 167 et seq., 226, 246 et seq., 440. 62 Am. Jur. 2d, Premises Liability, § 49 et seq. 62A Am. Jur. 2d, Premises Liability, § 617. 78 Am. Jur. 2d, Waters, §§ 206, 239, 395.

C.J.S. - 16A C.J.S., Constitutional Law, §§ 616, 617. 18 C.J.S., Convicts, §§ 2, 5, 16 et seq., 23. 65 C.J.S., Negligence, § 169. 65A C.J.S., Negligence, § 400 et seq. 66 C.J.S., Nuisances, § 121 et seq.

ALR. - Liability of landowner for injury to or death of child caused by cave-in or landslide, 28 A.L.R.2d 195.

Liability of landowner for injury or death of adult falling down unhoused well, cistern, mine shaft, or the like, 46 A.L.R.2d 1069.

Duty and liability as to plugging oil or gas well abandoned or taken out of production, 50 A.L.R.3d 240.

44-1-15. Removal or destruction of survey monuments prohibited; exceptions; penalties.

  1. As used in this Code section, the term:
    1. "Geodetic control monuments" means those survey monuments which are established by federal, state, local, and private agencies, the position of which monuments on the earth's surface has been fixed by high-order surveying and computation for use by surveyors and engineers in the extension of geodetic position to property corners, improvements to property, utility systems, streets and highways, and such other objects and things as may be located by surveying. Such monuments may be in the form of metal disks set in concrete, rock, metal, or some other fixed permanent object, the position thereof having been published by the agency which established the monument and made available to the public as well as to land surveyors and engineers for public use.
    2. "Property corner monuments" means those survey monuments which are established to identify property corners, the location and description of which are made a part of any plat or any instrument pertaining to real property filed in the office of the clerk of the superior court of any county of this state. Said survey monuments may be any permanent or semipermanent objects or any live or dead plant material, including, but not limited to, iron or steel pipes, bars, or rods; concrete markers, including highway right of way markers; stone or rock, whether natural or erected; trees, stumps, stakes, and marks, including those marks made on trees, stones, rocks, concrete, or metal; and such other monuments as may be described in said plats and instruments of record.
  2. It shall be unlawful for any person willfully and knowingly to remove, destroy, injure, or displace any geodetic control monument or property corner monument except under the authority of the agency which originally set the monument or, in the case of a property corner monument, under the authority of a registered land surveyor or duly elected or appointed county surveyor having the written permission of all landowners who are parties to said property corner monument. In the case of a geodetic control monument, the record of any authorized change shall be published; and, in the case of a property corner monument, the record of any authorized change shall be filed for record in the office of the clerk of the superior court of the county in which the monument is located.
  3. Any person who violates this Code section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than $100.00 nor more than $500.00 and may also be punished by imprisonment for not less than 30 days nor more than 60 days.

    (Ga. L. 1978, p. 1614, §§ 1-3; Ga. L. 1982, p. 3, § 44.)

Cross references. - Recording maps and plats of real estate, § 15-6-67 et seq.

RESEARCH REFERENCES

Am. Jur. 2d. - 12 Am. Jur. 2d, Boundaries, §§ 4, 5.

C.J.S. - 11 C.J.S., Boundaries, § 17.

ALR. - Conveyance with reference to tree, or similar monument, as giving title to center thereof, 2 A.L.R. 1428 , 61 A.L.R.5th 739.

44-1-16. Failure to disclose in real estate transaction that property was occupied by diseased person or was site of death; failure to disclose information required to be provided or maintained in accordance with Code Section 44-9-44.1

    1. No cause of action shall arise against an owner of real property, a real estate broker, or any affiliated licensee of the broker for the failure to disclose in any real estate transaction the fact or suspicion that such property:
      1. Is or was occupied by a person who was infected with a virus or any other disease which has been determined by medical evidence as being highly unlikely to be transmitted through the occupancy of a dwelling place presently or previously occupied by such an infected person; or
      2. Was the site of a homicide or other felony or a suicide or a death by accidental or natural causes;

        provided, however, an owner, real estate broker, or affiliated licensee of the broker shall, except as provided in paragraph (2) of this subsection, answer truthfully to the best of that person's individual knowledge any question concerning the provisions of subparagraph (A) or (B) of this paragraph.

    2. An owner, real estate broker, or affiliated licensee of the broker shall not be required to answer any question if answering such question or providing such information is prohibited by or constitutes a violation of any federal or state law or rule or regulation, expressly including without limitation the federal Fair Housing Act as now or hereafter amended or the state's fair housing law as set forth in Code Sections 8-3-200 through 8-3-223.
  1. No cause of action shall arise against an owner of real property, real estate broker, or affiliated licensee of the broker for the failure to disclose in any real estate transaction any information or fact which is provided or maintained or is required to be provided or maintained in accordance with Code Section 42-9-44.1 . No cause of action shall arise against any real estate broker or affiliated licensee of the broker for revealing information in accordance with this Code section. Violations of this Code section shall not create liability under this Code section against any party absent a finding of fraud on the part of such party. (Code 1981, § 44-1-16 , enacted by Ga. L. 1989, p. 1633, § 1; Ga. L. 1998, p. 1050, § 1; Ga. L. 2001, p. 1155, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, at the end of paragraph (a)(2), "Code Section" was deleted preceding "8-3-223" and "Code Sections" was substituted for "Code Section" preceding "8-3-200".

Editor's notes. - Ga. L. 1983, p. 471, effective March 15, 1983, repealed former § 44-1-16 (based on Ga. L. 1971, p. 624, §§ 2, 3), which pertained to information required to appear on posters for outdoor use.

Code Section 42-9-44.1, referred to in subsection (b), was repealed by Ga. L. 2006, p. 379, § 28, effective July 1, 2006.

Law reviews. - For note on the 2001 amendment to O.C.G.A. § 44-1-16 , see 18 Ga. St. U.L. Rev. 260 (2001).

44-1-17. Responsibilities of buyers or grantees and grantors or owners relating to transfers of property within or adjacent to property zoned for agricultural or silvicultural use; notice to prospective purchaser, lessee, or grantee; effect of noncompliance.

  1. Prior to any purchase, lease, or other acquisition of real property or any interest in real property located within any county which has land zoned for agricultural or silvicultural use or identified on an approved county land use plan as agricultural or silvicultural use, it shall be the buyer's or grantee's responsibility to determine whether the subject property is within, partially within, or adjacent to any property zoned or identified on an approved county land use plan as agricultural or silvicultural use. If the grantor, owner, or agent of the owner knows that the property being acquired is within, partially within, or adjacent to any property zoned or identified on an approved county land use plan as agricultural or silvicultural use, the owner or agent for the owner shall deliver to the prospective purchaser, lessee, or grantee a notice which states the following:

    "It is the policy of this state and this community to conserve, protect, and encourage the development and improvement of farm and forest land for the production of food, fiber, and other products, and also for its natural and environmental value. This notice is to inform prospective property owners or other persons or entities leasing or acquiring an interest in real property that the property in which they are about to acquire an interest lies within, partially within, or adjacent to an area zoned, used, or identified for farm and forest activities and that farm and forest activities occur in the area. Such farm and forest activities may include intensive operations that cause discomfort and inconveniences that involve, but are not limited to, noises, odors, fumes, dust, smoke, insects, operations of machinery during any 24 hour period, storage and disposal of manure, and the application by spraying or otherwise of chemical fertilizers, soil amendments, herbicides, and pesticides. One or more of these inconveniences may occur as the result of farm or forest activities which are in conformance with existing laws and regulations and accepted customs and standards."

  2. Noncompliance with any provision of this Code section shall not affect title to real property nor prevent the recording of any document.
  3. This Code section shall not apply to any transaction involving title passing by foreclosure, deed in lieu of foreclosure, tax deed, deed to secure debt, or from an executor or administrator.
  4. This Code section shall not create a cause of action for damages or equitable relief. (Code 1981, § 44-1-17 , enacted by Ga. L. 1995, p. 1198, § 1.)

Editor's notes. - Ga. L. 1995, p. 1198, § 4(a), not codified by the General Assembly, provides that this Code section applies to any transaction involving real property entered into on or after July 1, 1995.

Law reviews. - For note on the 1995 enactment of this Code section, see 12 Ga. St. U.L. Rev. 313 (1995).

44-1-18. Execution search prior to conveyance of property; certificate of clearance required; requirements for requests; binding effect; timing of information release; failure to comply; retention; criminal penalties; exceptions; requirements for certificate; regulatory authority.

Reserved. Repealed by Ga. L. 2018, p. 1, § 6/HB 661, effective February 20, 2018.

Editor's notes. - This Code section was based on Code 1981, § 44-1-18 , enacted by Ga. L. 2017, p. 723, § 12/HB 337.

Ga. L. 2018, p. 1112, § 54(e)/SB 365, part of an Act to revise, modernize, and correct the Code, effective May 8, 2018, not codified by the General Assembly, provides: "In the event of an irreconcilable conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2010 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendments to subsection (a) of this Code section by Ga. L. 2018, p. 1112, § 44(1)/SB 365, were not given effect.

CHAPTER 2 RECORDATION AND REGISTRATION OF DEEDS AND OTHER INSTRUMENTS

Recording.

R ECORDING OF DEEDS AND OTHER REAL PROPERTY TRANSACTIONS .

U NIFORM REAL PROPERTY ELECTRONIC RECORDING .

Land Registration.

I N GENERAL .

P ROCEEDINGS TO REGISTER .

E XAMINERS .

R EGISTERS AND REGISTRATION .

C ONVEYANCE, TRANSFER, AND DESCENT .

A SSURANCE FUND .

F EES .

F ORMS .

Cross references. - Recording of maps or plats of real estate by clerk of superior court generally, § 15-6-67 et seq.

Title insurance, § 33-7-8 .

Filing conveyances of property to or by state with State Properties Commission, § 50-16-122 .

Law reviews. - For article discussing the problems with acquiring good title, see 15 Ga. B.J. 281 (1953). For article advocating the adoption of a marketable title statute in Georgia, see 16 Ga. B.J. 263 (1954). For article on title examinations and closings, see 22 Mercer L. Rev. 505 (1971). For article discussing 1976 to 1977 developments in Georgia real property law, see 29 Mercer L. Rev. 219 (1977).

JUDICIAL DECISIONS

Construed with Chapter 11 of this Title. - Relief in ejectment is not coextensive with that under Title 22 of the Land Registration Act in that ejectment title can never be settled as against the world. Conversely, relief may be had in ejectment which cannot be had under the Act, including possession of the premises and judgment for mesne profits. Union Bag-Camp Paper Corp. v. Coffee County Hunting & Fishing Club, 216 Ga. 44 , 114 S.E.2d 511 (1960).

Effect of registration law on adverse possession. - Protection which the registration law gives to one taking title to lands upon the faith of the record title should not be destroyed except upon clear and satisfactory evidence showing a clear equity in one who seeks to establish a right in hostility to the record title by adverse possession. Such possession must be actual, open, visible, exclusive, and unambiguous. McDonald v. Taylor, 200 Ga. 445 , 37 S.E.2d 336 (1946).

Sufficiency of evidence proving title. - Title to land cannot be proved by hearsay testimony. Neither can title to land be established by general reputation in the community as to ownership. City of Marietta v. Glover, 225 Ga. 265 , 167 S.E.2d 649 (1969).

Cited in Craig v. Arnold, 227 Ga. 333 , 180 S.E.2d 733 (1971).

RESEARCH REFERENCES

Prospective Purchaser's Recovery of Damages for Tortuous Interference with Real Estate Contract, 97 Am. Jur. Trials 107.

Real Estate Broker's Breach of Fiduciary Duty to Disclose Material Facts to Seller-Principal, 101 Am. Jur. Trials 1.

ALR. - Concealment, misrepresentation, or mistake as regards identity of person for whom property is purchased as ground for cancellation of deed, 6 A.L.R.2d 812.

Clay, sand, or gravel as "minerals" within deed, lease, or license, 95 A.L.R.2d 843.

ARTICLE 1 RECORDING

Cross references. - Real estate transfer taxes, see § 48-6-1 et seq.

Law reviews. - For article, "Noticing the Bankruptcy Sale: The Purchased Property May Not Be as 'Free and Clear of All Liens, Claims and Encumberances' as You Think," see 15 (No. 5) Ga. St. B.J. 12 (2010). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).

JUDICIAL DECISIONS

Effect of grantor's conveyance to another before grantor became owner. - Title of a bona fide purchaser is not impaired by a conveyance from the purchaser's grantor to another, which was made and filed before the purchaser's grantor became the owner of the property, since to hold otherwise would be to require a purchaser to extend back indefinitely the purchaser's period of record search against the name of each prior owner. Insilco Corp. v. Carter, 245 Ga. 513 , 265 S.E.2d 794 (1980).

Constructive notice of subsequent deeds. - Purchaser has constructive notice of any deeds out of the purchaser's grantor from the date of deed, rather than the date of the deed's recording. Insilco Corp. v. Carter, 245 Ga. 513 , 265 S.E.2d 794 (1980).

Cited in Gray v. Georgia Real Estate Comm'n, 209 Ga. 301 , 71 S.E.2d 645 (1952).

OPINIONS OF THE ATTORNEY GENERAL

Instrument which conveys only security interest in personal property is not entitled to recording as an instrument affecting title to land. 1975 Op. Att'y Gen. No. U75-87.

RESEARCH REFERENCES

ALR. - Record of executory contracts for the sale of real estate, 26 A.L.R. 1546 .

Fraudulent misrepresentation or concealment by a contracting party concerning title to property or other subjects which are matters of public record, 33 A.L.R. 853 ; 56 A.L.R. 1217 .

Allowance for improvements in reliance upon title or interest defeated by failure to record conveyance, 40 A.L.R. 282 .

Use of diminutive or nickname as affecting operation of record as notice, 45 A.L.R. 557 .

Failure to record or delay in recording an instrument affecting real property as basis of estoppel in favor of creditors not directly within protection of recording acts, 52 A.L.R. 183 .

Presumption or burden of proof as to whether or not instrument affecting title to property is recorded, 53 A.L.R. 668 .

Grantee or mortgagee by quitclaim deed or mortgage in quitclaim form as within protection of recording laws, 59 A.L.R. 632 .

Effect of alteration in deed or mortgage with consent of parties thereto after acknowledgment or attestation, 67 A.L.R. 364 .

Assignment of future rents as within recording laws, 75 A.L.R. 270 .

Right of one otherwise protected by recording law against prior unrecorded deed or mortgage as affected by fact that all or part of the consideration was unpaid at the time he received notice, actual or constructive, of the prior instrument, 109 A.L.R. 163 .

Federal government or agencies of federal government as subject to payment of tax or fee imposed upon, or for, recording or filing instrument, 124 A.L.R. 1267 .

Validity and effect, as to previously recorded instrument, of statute which places or changes time limit on effectiveness of record of mortgages or other instruments, 133 A.L.R. 1325 .

Record of instrument which comprises or includes an interest or right that is not a proper subject of record, 3 A.L.R.2d 577.

Agreement between real estate owners restricting use of property as within contemplation of recording laws, 4 A.L.R.2d 1419.

Personal covenant in recorded deed as enforceable against grantee's lessee or successor, 23 A.L.R.2d 520.

Recorded real property instrument as charging third party with constructive notice of provisions of extrinsic instrument referred to therein, 89 A.L.R.3d 901.

PART 1 R ECORDING OF DEEDS AND OTHER REAL PROPERTY TRANSACTIONS

Editor's notes. - Ga. L. 2009, p. 695, § 1, effective May 5, 2009, designated Code Sections 44-2-1 through 44-2-30 as this part.

Law reviews. - For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).

44-2-1. Where and when deeds recorded; priority as to subsequent deeds taken without notice from same vendor.

Every deed conveying lands shall be recorded in the office of the clerk of the superior court of the county where the land is located. A deed may be recorded at any time; but a prior unrecorded deed loses its priority over a subsequent recorded deed from the same vendor when the purchaser takes such deed without notice of the existence of the prior deed.

(Laws 1755, Cobb's 1851 Digest, p. 159; Laws 1768, Cobb's 1851 Digest, p. 162; Laws 1785, Cobb's 1851 Digest, p. 164; Laws 1788, Cobb's 1851 Digest, p. 160; Laws 1837, Cobb's 1851 Digest, p. 175; Code 1863, § 2667; Code 1868, § 2663; Code 1873, § 2705; Code 1882, § 2705; Civil Code 1895, § 3618; Civil Code 1910, § 4198; Code 1933, § 29-401.)

Cross references. - Recording of certificate of order for year's support, § 53-5-11.

Law reviews. - For annual survey on law of real property, see 43 Mercer L. Rev. 353 (1991). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014). For note, "The Effect of Failure to Record Conditional Sale Contracts in Georgia," see 11 Mercer L. Rev. 358 (1960). For note discussing the Motor Vehicle Certificate of Title Act provisions in Ch. 3, T. 40, and their impact, see 13 Mercer L. Rev. 258 (1961). For comment on Manchester Motors, Inc. v. Farmers & Merchants Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), see 18 Ga. B.J. 82 (1955).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Written instruments of title favored. - Law favors title to realty being evidenced by written instruments; conversely, the law does not favor title to realty being evidenced by parol agreements. Freeman v. Saxton, 243 Ga. 571 , 255 S.E.2d 28 (1979).

Neighbor's 2008 deeds were recorded before the brothers' 1977 deed and the brother's repeated and visible activities in the riverbed did not put the neighbor on notice of the brothers' claim to own the entire riverbed; all of the brothers' activities were consistent with the brothers' easement rights and the trial court did not err in concluding that the neighbor was an innocent purchaser who bought the riverbed without notice that the brothers claimed ownership. Thomas v. Henry County Water & Sewerage Auth., 317 Ga. App. 258 , 731 S.E.2d 66 (2012).

Effect of restrictive covenants in unrecorded instrument. - Purchaser of land without actual notice may take free of restrictive covenants contained in an unrecorded contract or deed. Jenkins v. Sosebee, 74 Bankr. 440 (Bankr. N.D. Ga. 1987).

For history of this statute, see Downs v. Yonge, 17 Ga. 295 (1855); Bell v. McCawley, 29 Ga. 355 (1859); Riley v. Southwestern R.R., 63 Ga. 325 (1879); Hockenhull v. Oliver, 80 Ga. 89 , 4 S.E. 323 , 12 Am. St. R. 235 (1887); White v. Interstate Bldg. & Loan Ass'n, 106 Ga. 146 , 32 S.E. 26 (1898); Lindley v. Frey, 115 Ga. 662 , 42 S.E. 79 (1902); Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908); Wilkes v. Folsom, 154 Ga. 618 , 115 S.E. 4 (1922) (see O.C.G.A. § 44-2-1 ).

For cases illustrative of the law before enactment of Ga. L. 1889, p. 106, §§ 1 and 4 (see O.C.G.A. § 44-2-2 ), see Gibson v. Hough & Sons, 60 Ga. 588 (1878); Lowe v. Allen, 68 Ga. 225 (1881); Latham v. Inman, 88 Ga. 505 , 15 S.E. 8 (1891).

Cited in Hand v. McKinney, 25 Ga. 648 (1858); Lessee of Dudley v. Bradshaw, 29 Ga. 17 (1859); Dickson v. Chapman, 153 Ga. 547 , 112 S.E. 830 (1922); Dorsey v. Clower, 162 Ga. 299 , 133 S.E. 249 (1926); Terry v. Ellis, 189 Ga. 698 , 7 S.E.2d 282 (1940); Mendenhall v. Holtzclaw, 198 Ga. 95 , 31 S.E.2d 171 (1944); Blue Ridge Apt. Co. v. Telfair Stockton & Co., 205 Ga. 552 , 54 S.E.2d 608 (1949); Georgia R.R. & Banking Co. v. Fulmer, 84 Ga. App. 101 , 65 S.E.2d 636 (1951); United States v. West, 132 F. Supp. 934 (N.D. Ga. 1955); Day v. C.O. Smith Guano Co., 95 Ga. App. 581 , 98 S.E.2d 173 (1957); Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964); Pressley v. Jennings, 227 Ga. 366 , 180 S.E.2d 896 (1971); Palmer v. Forrest, Mackey & Assocs., 251 Ga. 304 , 304 S.E.2d 704 (1983); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986); Minor v. McDaniel, 210 Ga. App. 146 , 435 S.E.2d 508 (1993); Bell v. State, 234 Ga. App. 693 , 507 S.E.2d 535 (1998).

Applicability

Contract took priority over deed. - Recording of a contract to sell land took priority over a later recorded deed transferring the disputed land. Parks v. Stepp, 277 Ga. 704 , 594 S.E.2d 364 (2004).

Section does not apply to security deeds. In re Hammett, 286 F. 392 (N.D. Ga. 1923). See also Randall v. Hamilton, 156 Ga. 661 , 119 S.E. 595 (1923) (see O.C.G.A. § 44-2-1 ).

No application to question of bona fides where occupant seeking to setoff permanent improvements. - Construction notice is evidence, as a matter of course. In a contest between deeds involving merely title, it would be conclusive. However, this statute does not purport to deal with the question of bona fides where an occupant of land is seeking to setoff permanent improvements. The burden on this question is on the party asserting notice. Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933) (see O.C.G.A. § 44-2-1 ).

This statute does not purport to deal with the question of bona fides when an occupant of land is seeking to setoff permanent improvements. The burden on this question is on the party asserting notice. McKaig v. Hardy, 196 Ga. 582 , 27 S.E.2d 11 (1943) (see O.C.G.A. § 44-2-1 ).

Security deeds not properly attested or acknowledged, although recorded, did not provide subsequent purchasers of property constructive notice of their content and the deeds lost whatever priority the deeds may have had over the purchasers' title. Sears Mtg. Corp. v. Leeds Bldg. Prods., Inc., 219 Ga. App. 349 , 464 S.E.2d 907 (1995), aff'd in part and rev'd in part, 267 Ga. 300 , 477 S.E.2d 565 (1996).

In the absence of fraud, a deed which on the deed's face complies with all statutory requirements is entitled to be recorded, and once accepted and filed with the clerk for record, provides constructive notice to the world of the deed's existence. Leeds Bldg. Prods., Inc. v. Sears Mtg. Corp., 267 Ga. 300 , 477 S.E.2d 565 (1996), overruling White v. Magarahan, 87 Ga. 217 , 13 S.E. 509 (1891); Propes v. Todd, 89 Ga. App. 308 , 79 S.E.2d 346 (1953), overruled on other grounds, Leeds Bldg. Prods., Inc. v. Sears Mtg. Corp., 267 Ga. 300 , 477 S.E.2d 565 (1996).

Where and When Deeds Recorded

Purpose of requiring a deed to be recorded in the county where the land lies is to give constructive notice of the deed to the world. Williams v. Smith, 128 Ga. 306 , 57 S.E. 801 (1907). See also Sapp v. Cline, 131 Ga. 433 , 62 S.E. 529 (1908).

Deed may be recorded at any time after the deed's execution. Lindley v. Frey, 115 Ga. 662 , 42 S.E. 79 (1902); Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908).

If land lies partly in each of two counties deed is recorded in each county. Kennedy v. Harden, 92 Ga. 230 , 18 S.E. 542 (1893). See also Chapman v. Floyd, 68 Ga. 455 (1882).

Construed with § 44-14-63 . - Since, at the time of execution of bills of sale in question, the maker was a resident of one county but had the maker's domicile in another, the holder of junior bill of sale recorded in county where maker was resident had title to property superior to that of the holder of senior bill of sale recorded in county where maker had the maker's domicile, in view of fact that former Code 1933, § 67-1305 (see O.C.G.A. § 44-14-63 ) provides for the recording in the county where the maker resided at the time of the execution of the instruments, and the law draws a clear distinction between residence and domicile. Commercial Bank v. Pharr, 75 Ga. App. 364 , 43 S.E.2d 439 (1947).

Priority of Deeds from Same Vendor
1. In General

Former Code 1933, §§ 29-401 and 67-2501 and 67-2503 (see O.C.G.A. §§ 44-2-1 and 44-2-2 ) were to be construed together. Price v. Watts, 223 Ga. 805 , 158 S.E.2d 406 (1967).

Donor need not own land at time of first deed. - Falling within the scope of this statute are not only cases in which the donor owns the land at the time the donor makes the first of the two deeds, but also those cases in which the donor does not, at that time, own the land but has come to own the land when the donor makes the second deed. Faircloth v. Jordan, 18 Ga. 350 (1855) (see O.C.G.A. § 44-2-1 ).

As against each other, deeds take priority from date of filing for record. - In a contest between deeds upon a valuable consideration from the same grantor conveying the same property, such deeds, as against each other, when taken without notice, will take priority only from and after the date of lawful record or filing for record, and neither deed, upon being recorded, will relate back so as to affect the rights of the parties touching the subject matter of the deed at any time before the deed is filed for record. Fourth Nat'l Bank v. Howell, 92 Ga. App. 868 , 90 S.E.2d 78 (1955).

Statute operates only in favor of purchaser in good faith when there is valuable consideration. Webb v. John Doe, 33 Ga. 565 (1863); Byrd v. Aspinwall, 108 Ga. 1 , 33 S.E. 688 (1899); Lindley v. Frey, 115 Ga. 662 , 42 S.E. 79 (1902); Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908); Dix v. Wilkinson, 149 Ga. 103 , 99 S.E. 437 (1919) (see O.C.G.A. § 44-2-1 ).

Section does not apply in a contest between deeds unless the junior grantee is a bona fide purchaser for value. Minor v. Georgia Kraft Co., 219 Ga. 434 , 134 S.E.2d 19 (1963); Price v. Watts, 223 Ga. 805 , 158 S.E.2d 406 (1967) (see O.C.G.A. § 44-2-1 ).

Voluntary deeds not included. - If the legislature had intended to include voluntary deeds, the word "grantor," and not "vendor," would have been used. Toole v. Toole, 107 Ga. 472 , 33 S.E. 686 (1899).

Junior deed recorded without notice of unrecorded senior deed given priority. - To give priority to a junior recorded deed over a senior unrecorded deed, it must appear that the junior deed was for a valuable consideration and taken without notice of the unrecorded deed. Nickerson v. Porter, 189 Ga. 671 , 7 S.E.2d 231 (1940).

Senior unrecorded deed loses the deed's priority over a junior recorded deed for value from the same vendor, taken without knowledge or notice of the existence of the senior deed, and in a proper case may be canceled at the instance of the grantee in the junior recorded deed. Terry v. Ellis, 189 Ga. 698 , 7 S.E.2d 282 (1940).

Deed of prior date loses the deed's priority over a subsequent deed from the same vendor, which is based on a valuable consideration, taken without notice of the existence of the first and being the first to go to record in the office of the clerk of the superior court of the county where the land lies; even if the vendee in the second deed took with notice, a grantee of the latter who took without notice would be protected. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

Senior unrecorded deed loses the deed's priority over a junior recorded deed for value from the same vendor, taken without knowledge or notice of the existence of the senior deed. Whether the defendant purchased without notice of the senior deed in the petitioner's chain of title was a question for the jury. Tucker v. Long, 207 Ga. 730 , 64 S.E.2d 69 (1951).

Junior deed, properly recorded, taken without notice of an unrecorded senior deed from the same vendor and for a valuable consideration, has priority over the unrecorded senior deed. Michael v. Poss, 209 Ga. 559 , 74 S.E.2d 742 (1953); Fourth Nat'l Bank v. Howell, 92 Ga. App. 868 , 90 S.E.2d 78 (1955).

When, in a contest between plaintiff and defendant as to title to certain described land, each claiming under a deed from a common grantor, the deed under which defendant claims having been given for a valuable consideration and executed prior to the deed under which plaintiff claims but recorded after plaintiff's deed, the deed under which plaintiff claims reciting a consideration of love and affection, the defendant's deed has priority over the plaintiff's deed. Minor v. Georgia Kraft Co., 219 Ga. 434 , 134 S.E.2d 19 (1963).

Deed which is executed between a grantor and grantee, recorded, but never actually delivered to the grantee until after the grantor's death, is a superior title to a different deed between the same grantee and grantor that is actually delivered to the grantee but is recorded later than the undelivered deed. Dawson v. Keitt, 232 Ga. 10 , 205 S.E.2d 309 (1974).

Recorded quitclaim deed, taken in good faith for valuable consideration, without notice, also prevails over a prior unrecorded deed. This rule is not altered by the fact that the quitclaim deed conveys only the grantor's rights, title, and interest in and to the land, instead of conveying the land itself. Archer v. Kelley, 194 Ga. 117 , 21 S.E.2d 51 (1942).

Sheriff's deed recorded ahead of prior deed by defendant in execution comes within statute. McCandless v. Inland Acid Co., 108 Ga. 618 , 34 S.E. 142 (1899); Maddox v. Arthur, 122 Ga. 671 , 50 S.E. 668 (1905); Bennett v. Southern Pine Co., 123 Ga. 618 , 51 S.E. 654 (1905); Culbreath v. Martin, 129 Ga. 280 , 58 S.E. 832 (1907) (see O.C.G.A. § 44-2-1 ).

Recorded security deed superior to unrecorded title bond. - When, at the time that a security deed was executed and recorded, a bond for title was not recorded, and the obligee on the bond for title was not in possession of the property, and when the grantee in the security deed had no actual notice of the outstanding bond for title, the rights conveyed by the security deed were superior to those held by the obligee in the bond for title. Kelley v. Spivey, 182 Ga. 507 , 185 S.E. 783 (1936).

2. Notice

Section in conflict with common-law rule of estoppel. - As to those cases which come within the provisions of this statute, it is in conflict with the common-law rule of estoppel by deed. Faircloth v. Jordan, 18 Ga. 350 (1855) (see O.C.G.A. § 44-2-1 ).

What constitutes notice. - Any sort of notice, actual or constructive, will suffice to give notice. Wyatt v. Elam, 23 Ga. 201 , 68 Am. Dec. 518 (1857).

Actual possession is such notice. Wyatt v. Elam, 23 Ga. 201 , 68 Am. Dec. 518 (1857). See also Wyatt v. Elam, 19 Ga. 335 (1856).

Inquiry notice. - When a Chapter 7 debtor purchased a home and paid off a bank's existing security interest with funds borrowed from a creditor, the creditor's security deeds, which were recorded along with the debtor's warranty deed several weeks after the closing of the home purchase and the creditor's loan, were perfected at the time the loans were executed and delivered within the meaning of 11 U.S.C. § 547(e)(1)(A) because a bona fide purchaser would have had inquiry notice of the loans at all times prior to their recordation based on the debtor's absence of record title and the existence of the cancelled security deed on the property in favor of the bank. Watts v. Argent Mortg. Co., LLC (In re Hunt), Bankr. (Bankr. N.D. Ga. Feb. 23, 2007).

Lis pendens and Lost Deed Affidavit, with the accompanying copy of the Security Deed, were filed pre-petition and were sufficient to put a person of ordinary prudence fully upon guard, and induce serious inquiry. For these reasons, under Georgia law, the trustee could not qualify as a bona fide purchaser on the bankruptcy petition date and therefore could not be availed of the strong-arm powers of 11 U.S.C.S. § 544(a)(3). Elec. Registration Sys. v. Pyke (In re Pyke), Bankr. (Bankr. S.D. Ga. Aug. 1, 2007).

Chapter 13 trustee was bona fide purchaser. - When a security deed executed by Chapter 13 debtors had the correct street address for the collateral but an incorrect legal description, the secured creditor was not entitled to postconfirmation reformation of the deed because the Chapter 13 trustee was a hypothetical bona fide purchaser; there was nothing in the chain of title that would have put the trustee on constructive or inquiry notice of the defect. Midfirst Bank v. Hill (In re Hill), Bankr. (Bankr. S.D. Ga. Sept. 29, 2010).

Any circumstance placing ordinary prudent person upon guard constitutes notice. - Any circumstance which would place a person of ordinary prudence fully upon the person's guard, and induce serious injury, is sufficient to constitute notice of a prior unrecorded deed, and a younger deed, taken with such notice, acquires no preference by being recorded in due time. Price v. Watts, 223 Ga. 805 , 158 S.E.2d 406 (1967).

When recitals contained in a deed clearly put any subsequent purchaser on notice of the existence of an earlier misplaced or lost deed, the later deed, though recorded first, would not be entitled to priority. Harper v. Paradise, 233 Ga. 194 , 210 S.E.2d 710 (1974).

Admissions against title not estoppel in behalf of one to whom not made. - Admissions against one's title to land, and in favor of the title of a third person, will be no estoppel in behalf of one to whom the admissions were not made, and who has merely heard of the admissions, it not appearing that the admissions were made for the purpose of being acted upon, or with any design or intention that the admissions should be acted upon. Randolph v. Merchants & Mechanics Banking & Loan Co., 181 Ga. 671 , 183 S.E. 801 (1936).

Sole purpose and effect of recording of deed is to afford third parties constructive notice of the existence of the deed. City Whsle. Co. v. Harper, 100 Ga. App. 151 , 110 S.E.2d 561 (1959).

Recording is necessary to give constructive notice. See Fourth Nat'l Bank v. Howell, 92 Ga. App. 868 , 90 S.E.2d 78 (1955).

Grantee's duty to record deed thereby supplying notice. - It is made the plain duty of a grantee to record the grantee's deed, thereby giving constructive notice to every one of the deed's existence and of the grantee's rights thereunder; since it is thus made the duty of the grantee to supply notice, every one is justified in relying upon an examination of the record and believing that a purchase of land will convey all title which the record fails to disclose is in another. Archer v. Kelley, 194 Ga. 117 , 21 S.E.2d 51 (1942).

Recorded tax deed gives notice of a defeasible title. Bennett v. Southern Pine Co., 123 Ga. 618 , 51 S.E. 654 (1905).

Purchaser has notice whether or not purchaser knows of record. - Properly recorded deed gives notice whether or not the subsequent purchaser knows of the record. McElwaney v. MacDiarmid, 131 Ga. 97 , 62 S.E. 20 (1908).

Erroneous index in record book. - Properly recorded deed gives notice even when erroneous index in record book fails to show where deed is found. Chatham v. Bradford, 50 Ga. 327 , 15 Am. R. 692 (1873).

Irregular registration does not give notice to anyone. Williams v. Adams, 43 Ga. 407 (1871).

Want of notice can only be set up by subsequent bona fide purchaser. Zorn v. Thompson, 108 Ga. 78 , 34 S.E. 303 (1899). See also Avera v. Southern Mtg. Co., 147 Ga. 24 , 92 S.E. 533 (1917); Dix v. Wilkinson, 149 Ga. 103 , 99 S.E. 437 (1919).

Failure to conduct title examination. - When purchaser was under constructive notice as to the legal description of the purchaser's own deed, which incorporated the recorded plat by reference, and as to the ownership of the lot the purchaser believed the purchaser was buying but that was owned by another, the purchaser's failure to conduct a title examination was the sole proximate cause of injuries and the purchaser's negligence action was barred. Reidling v. Holcomb, 225 Ga. App. 229 , 483 S.E.2d 624 (1997).

3. Vendor

Both deeds must emanate, as two streams of title, from the same source. Murphy v. Peabody, 63 Ga. 522 (1879).

"Same vendor" construed. - Words "same vendor" cannot be construed to mean the heir of the vendor. Webb v. John Doe, 33 Ga. 565 (1863); Dodge v. Briggs, 27 F. 160 (S.D. Ga. 1886).

It is sufficient if the second deed is made by the vendor's representative, either during the vendor's lifetime or after the vendor's death. Culbreath v. Martin, 129 Ga. 280 , 58 S.E. 832 (1907).

4. Bona Fide Purchaser

One getting title, and legal obligation to pay, is bona fide purchaser. - To be a bona fide purchaser in the full sense, one must pay the purchase money, or at least become legally bound to do so, and get title before getting notice of the rights of third persons. Gleaton v. Wright, 149 Ga. 220 , 100 S.E. 72 (1919).

Presumption of good faith attaches to one who is a purchaser for value, which remains until overcome by proof. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

Lender was bona fide purchaser. - Trial court erred in determining that a second wife acquired a one-half interest in property quitclaimed to her by her husband because the husband had only a life estate in the property, and she was not a bona fide purchaser. The parties' lender, however, was a bona fide purchaser for value pursuant to O.C.G.A. §§ 44-2-1 , 44-2-2 , and 44-2-4(b) . Price v. Price, 286 Ga. 753 , 692 S.E.2d 601 (2010).

Unrecorded Deed

Effect of unrecorded deed. - Unrecorded deed of bargain and sale is postponed only to later bona fide purchasers for value without notice. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Penalty of failure to record a deed of bargain and sale has reference only to the rights of a subsequent vendee, taking a deed from the same vendor without notice of the existence of the prior unrecorded deed. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

Statute is exclusive and is intended to describe the one situation recognized by law in which a deed of bargain and sale loses its priority, namely, a subsequent recorded deed from the same vendor, taken without notice of the existence of the first. Thus, this statute places an unrecorded deed of bargain and sale ahead of all other assertions of priority except a contract conveyance or a lien recorded before the first deed. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), for comment, see 18 Ga. B.J. 82 (1955) (see O.C.G.A. § 44-2-1 ).

Appellate court reversed the portion of the trial court's order ruling on a bank's motion for a declaratory judgment on its reformation counterclaim because another non-party held an interest in the real property in question via an unrecorded quit claim deed and that individual needed to be added as a party. Salas v. JP Morgan Chase Bank, N.A., 334 Ga. App. 274 , 779 S.E.2d 48 (2015).

Unrecorded deeds of bargain and sale are not postponed to subsequent judgment liens. Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).

Unrecorded deed valid between original parties. - Grantee in a security deed is under no duty to the grantor to have the deed recorded. Such a deed, as between the original parties, is valid irrespective of whether it is recorded or not. It is only as against third persons, acting in good faith without notice, that recording is required. Corbin v. Shadburn, 49 Ga. App. 91 , 174 S.E. 259 (1934).

Effect of unrecorded sale deed in action for sale of timber. - Purchaser at sale who fails to record the purchaser's sale deed, and leaves the grantor in possession, cannot maintain a suit for trespass, or a trover action for timber felled by the grantor and sold to an innocent purchaser who has no notice of the sale of the land or of the landlord/tenant relationship between the purchaser and the grantor. Beavers v. Reynolds Bros. Lumber Co., 68 Ga. App. 858 , 24 S.E.2d 813 (1943).

Issue of fact as to inquiry notice. - Trial court erred by granting summary judgment to the plaintiff because the record showed that there was an issue of fact as to whether the defendants' possession of the property put the plaintiff on inquiry notice of the defendants' title despite the defendants' deed not being recorded. Caraway v. Spillers, 332 Ga. App. 588 , 774 S.E.2d 162 (2015).

Priority of unrecorded deed under Uniform Fraudulent Transfers Act. - Judgment voiding a transfer of property as fraudulent under the Uniform Fraudulent Transfers Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., was reversed because, despite not being recorded, the 2002 security deed executed in favor of a former sister-in-law, pledging the property as collateral for a promissory note, gave the former sister-in-law, as one of the defendant's creditors, priority over the plaintiff's judgment, such that the property could not be characterized as the defendant's asset under the UFTA. Wallin v. Wallin, 341 Ga. App. 440 , 800 S.E.2d 617 (2017).

Other Instruments
1. Power of Attorney

Power of attorney need not be recorded with deed. - Power of attorney, under which a deed is made, is a muniment of title, and may be recorded along with the deed, but its record is not necessary to the validity of the record of the deed. Johnson v. Johnson, 184 Ga. 783 , 193 S.E. 345 (1937).

Record of deed affords constructive notice of power's execution. - Since the record of a power of attorney merely affords proof of the validity of a deed executed thereunder, as distinguished from the validity itself, the record of a deed executed under a power of attorney affords constructive notice of its execution, even though the power of attorney substantiating its validity is not recorded with the deed. Johnson v. Johnson, 184 Ga. 783 , 193 S.E. 345 (1937).

2. Bill of Sale

Conditional bills of sale must be recorded within 30 days of their date. - Registration and record of conditional bills of sale shall be governed in all respects by the laws relating to the registration of mortgages on personal property, except that they must be recorded within 30 days from their date, and in this respect the instruments differ from mortgages, deeds, and bills of sale to secure debt, since these latter instruments date only from the time the instruments are filed for record as to innocent purchasers without notice thereof. Scoggins v. General Fin. & Thrift Corp., 80 Ga. App. 847 , 57 S.E.2d 686 (1950) (decided under former Code 1933, § 67-1403, prior to enactment of Title 11).

When not recorded within time allowed, subsequent valid liens superior to seller's rights. - When a conditional bill of sale or retention title contract is executed in another state on property afterward brought into this state, and this instrument is not recorded in the county of the buyer's residence within the time allowed, bona fide valid liens subsequently created against the property by the buyer would be superior to the rights of the seller, there being no question of actual knowledge of the rights of the seller under the conditional sale contract, or any fraud. Allen v. Dickey, 54 Ga. App. 451 , 188 S.E. 273 (1936) (decided under former Code 1933, § 67-1403, prior to enactment of Title 11).

Bill of sale to personalty to secure debt stands on same footing as realty deed to secure debt. Carrollton Prod. Credit Ass'n v. Allen, 93 Ga. App. 150 , 91 S.E.2d 93 (1955).

Effect of failure to record bill. - Effect of failure to record deeds and bills of sale to secure debt shall be the same as the effect of failure to record a deed of bargain and sale. Commercial Bank v. Pharr, 75 Ga. App. 364 , 43 S.E.2d 439 (1947).

Failure to record a bill of sale to secure debt has the same result as a failure to record a security deed or a deed of bargain and sale. Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958).

Recording of bill serves as constructive notice. - When bills of sale to secure debt have been recorded in the county of the residence of the maker thereof, the registration serves as constructive notice from the date the bills of sale are filed for record. General Fin. & Thrift Corp. v. Bank of Wrightsville, 92 Ga. App. 808 , 90 S.E.2d 93 (1955).

Assignee's rights against holder of junior bill of sale. - Since the undisputed evidence showed that the defendants owed a certain sum on a note and bill of sale to secure debt on certain personalty, the transferee for value of these instruments was entitled to claim the property to the extent of the amount due, as against the holder of notes secured by a junior bill of sale to the same property which was executed subsequent to the first instruments but prior to the assignment thereof. Adel Banking Co. v. Parrish, 84 Ga. App. 329 , 66 S.E.2d 150 (1951).

Effect of lien on unrecorded bill of sale. - Unrecorded bill of sale is uniformly superior to any lien arising by operation of law as is the case with any mechanic's lien. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), for comment, see 18 Ga. B.J. 82 (1955).

OPINIONS OF THE ATTORNEY GENERAL

Instruments effective against third parties only from date filed for record. - Deeds, mortgages, and liens take effect against third parties acting in good faith and without notice only from the time those documents are filed for record. 1945-47 Op. Att'y Gen. p. 120.

Constructive delivery of a warranty deed may be effected by delivery to an escrow agent within 120 days after the execution of the sales contract provided all of the following elements are present: (1) the escrow agent must be the agent of both the seller and the buyer, not just that of the seller; (2) the seller must release all control over the warranty deed when the seller delivers the deed to the escrow agent; (3) the escrow agent must be instructed to deliver the warranty deed to the buyer on the happening of a specific future event involving monetary consideration; (4) the escrow agent must be able to enforce the covenants and warranties found in former Code 1933, § 29-301 (see O.C.G.A. § 44-5-60 ) on behalf of the buyer; and (5) the real estate transaction must be properly recorded to put the world on notice of the buyer's equitable interest in the realty. 1974 Op. Att'y Gen. No. U74-17 (rendered prior to revision of Chapter 3, Article 1 of this Title).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 270. 66 Am. Jur. 2d, Records and Recording Laws, § 46.

C.J.S. - 26A C.J.S., Deeds, §§ 159, 160. 76 C.J.S., Records, §§ 6, 7.

ALR. - Priority where senior instrument affecting real property is recorded after execution but before recording of junior instrument, 32 A.L.R. 344 .

Neglect or fault of recording or filing officer as affecting consequences of failure properly to record or file instrument affecting property, 70 A.L.R. 595 .

Recording laws as applied to assignments of mortgages on real estate, 89 A.L.R. 171 ; 104 A.L.R. 1301 .

Presumption and burden of proof as regards good faith and consideration on part of purchaser or one taking encumbrance subsequent to unrecorded conveyance or encumbrance, 107 A.L.R. 502 .

Recording laws as applied to power of attorney under which deed or mortgage is executed, 114 A.L.R. 660 .

Federal government or agencies of federal government as subject to payment of tax or fee imposed upon, or for, recording or filing instrument, 124 A.L.R. 1267 .

Delivery of a deed without manual transfer or record, 129 A.L.R. 11 ; 87 A.L.R.2d 787.

Rule which makes priority of title depend upon priority of record as applied to record of later instrument in second chain title which antedates record of original instrument in first chain record of which, however, antedated record of original instrument in second chain, 133 A.L.R. 886 .

Priority between devisee under devise pursuant to testator's agreement and third person claiming under or through testator's unrecorded deed, 7 A.L.R.2d 544.

Sufficiency of delivery of deed where grantor retains, or recovers, physical possession, 87 A.L.R.2d 787.

44-2-2. Duty of clerk to record certain transaction affecting real estate and personal property; priority of recorded instruments; effect of recording on rights between parties to instruments.

    1. The clerk of the superior court shall file, index on a computer program designed for such purpose, and permanently record, in the manner provided constructively in Code Sections 15-6-61 and 15-6-66, the following instruments conveying, transferring, encumbering, or affecting real estate and personal property:
      1. Deeds;
      2. Mortgages;
      3. Liens as provided for by law; and
      4. Maps or plats relating to real estate in the county; and
      5. State tax executions and state tax execution renewals as provided for in Article 2 of Chapter 3 of Title 48.
    2. As used in this subsection, the term "liens" shall have the same meaning as provided in Code Sections 15-19-14, 44-14-320, and 44-14-602 and shall include all liens provided by state or federal statute.
    3. When indexing liens, the clerk shall index the names of parties in the manner provided by such rules and regulations adopted by the Georgia Superior Court Clerks' Cooperative Authority pursuant to the provisions of Code Section 15-6-61 as authorized by Code Section 15-6-97.
    4. When indexing maps or plats relating to real estate in the county, the clerk of superior court shall index the names or titles provided in the caption of the plat.
  1. Deeds, mortgages, and liens of all kinds which are required by law to be recorded in the office of the clerk of superior court and which are against the interests of third parties who have acquired a transfer or lien binding the same property and who are acting in good faith and without notice shall take effect only from the time they are filed for record in the clerk's office.
  2. Nothing in this Code section shall be construed to affect the validity or force of any deed, mortgage, judgment, or lien of any kind between the parties thereto. (Ga. L. 1889, p. 106, §§ 1, 4; Civil Code 1895, §§ 2778, 2781; Civil Code 1910, §§ 3320, 3323; Code 1933, §§ 67-2501, 67-2503; Code 1981 § 44-2-2 ; Ga. L. 1982, p. 3, § 44; Ga. L. 2002, p. 799, § 5; Ga. L. 2006, p. 334, § 1/SB 306; Ga. L. 2016, p. 193, § 3/HB 1004; Ga. L. 2017, p. 723, § 13/HB 337; Ga. L. 2017, p. 774, § 44/HB 323; Ga. L. 2018, p. 1, § 7/HB 661.)

The 2016 amendment, effective January 1, 2017, deleted ", as required by paragraph (2) of subsection (b) of Code Section 15-6-67, as both the grantor and grantee" following "caption of the plat" at the end of paragraph (a)(4).

The 2017 amendments. The first 2017 amendment, effective January 1, 2018, substituted "as provided for by law" for "of all kinds" in subparagraph (a)(1)(C); substituted "; and" for a period at the end of subparagraph (a)(1)(D); added subparagraph (a)(1)(E); in paragraph (a)(2), substituted "As used in" for "For the purpose of" at the beginning, inserted "the term" near the middle, and substituted "have the same meaning" for "be defined" in the middle; added the second and third sentences in paragraph (a)(3); added subparagraphs (a)(3)(A) through (a)(3)(D); and deleted "the" preceding "superior court" near the middle of subsection (b). The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "As used in this subsection, the term 'liens' shall have the same meaning" for "For the purpose of this subsection, 'liens' shall be defined" at the beginning of paragraph (a)(2).

The 2018 amendment, effective February 20, 2018, rewrote paragraph (a)(3).

Cross references. - Duty of clerk to obtain names and addresses of grantors and grantees prior to recording title transfer, § 15-6-63 .

Duty of clerk of superior court to maintain grantor-grantee index, § 15-6-66 .

Editor's notes. - Ga. L. 2016, p. 193, § 3/HB 1004, which amended this Code section, purported to amend paragraph (b)(4) but actually amended paragraph (a)(4).

Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Law reviews. - For note, "The Effect of Failure to Record Conditional Sale Contracts in Georgia," see 11 Mercer L. Rev. 358 (1960). For comment on Manchester Motors, Inc. v. Farmers & Merchants Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), see 18 Ga. B.J. 82 (1955).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Conflict with § 44-14-39 . - Former Code 1933, § 67-111 (see O.C.G.A. § 44-14-39 ) was necessarily repealed in 1889 insofar as it conflicted with former Code 1933, §§ 67-2501 and 67-2503 (see O.C.G.A. § 44-2-2 ). Buchanan v. Georgia Acceptance Co., 61 Ga. App. 476 , 6 S.E.2d 162 (1939).

Scope and purpose of section. - Statute does not create a new competition between deeds of bargain and sale and judgment liens. Its scope is to fix the time when, and the manner in which, liens acquired by contract or obtained by operation of law are to take effect, and to settle their priorities. Donovan v. Simmons, 96 Ga. 340 , 22 S.E. 966 (1895) (see O.C.G.A. § 44-2-2 ).

Statute was intended not only for the protection of innocent creditors who might acquire liens or transfers of property of a defendant in fi. fa. to secure their debts, but also for the protection of bona fide purchasers for value who obtain title to such property by absolute deed. Harvey & Brown v. Sanders, 107 Ga. 740 , 33 S.E. 713 (1899) (see O.C.G.A. § 44-2-2 ).

Security deed entitled to be recorded. - In the absence of fraud, a deed which on the deed's face complies with all statutory requirements is entitled to be recorded, and once accepted and filed with the clerk for record, provides constructive notice to the world of the deed's existence. Leeds Bldg. Prods., Inc. v. Sears Mtg. Corp., 267 Ga. 300 , 477 S.E.2d 565 (1996), overruling White v. Magarahan, 87 Ga. 217 , 13 S.E. 509 (1891); Propes v. Todd, 89 Ga. App. 308 , 79 S.E.2d 346 (1953), overruled on other grounds, Leeds Bldg. Prods., Inc. v. Sears Mtg. Corp., 267 Ga. 300 , 477 S.E.2d 565 (1996).

Effective date of deeds. - In determining for purposes of an implied easement of necessity when common owners had deeded land now belonging to the parties, the trial court erred in relying on the date of recording rather than on the date of the actual conveyance; there was nothing in O.C.G.A. § 44-2-2 that provided authority for holding that the deeds were not in force or did not take effect until recorded. Burnette v. Caplan, 287 Ga. App. 142 , 650 S.E.2d 798 (2007).

Cited in Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 449 , 160 S.E. 620 (1931); Lasch v. Columbus Heating & Ventilating Co., 174 Ga. 618 , 163 S.E. 486 (1932); Staples v. Heaton, 55 Ga. App. 495 , 190 S.E. 420 (1937); Motor Contract Co. v. Citizens & S. Nat'l Bank, 66 Ga. App. 78 , 17 S.E.2d 195 (1941); Blue Ridge Apt. Co. v. Telfair Stockton & Co., 205 Ga. 552 , 54 S.E.2d 608 (1949); McEntyre v. Burns, 81 Ga. App. 239 , 58 S.E.2d 442 (1950); Burgess v. Simmons, 207 Ga. 291 , 61 S.E.2d 410 (1950); Georgia R.R. & Banking Co. v. Fulmer, 84 Ga. App. 101 , 65 S.E.2d 636 (1951); United States v. West, 132 F. Supp. 934 (N.D. Ga. 1955); Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964); In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976); Jordan v. Jordan, 246 Ga. 395 , 271 S.E.2d 450 (1980); Palmer v. Forrest, Mackey & Assocs., 251 Ga. 304 , 304 S.E.2d 704 (1983); Webster v. Snapping Shoals Elec. Membership Corp., 176 Ga. App. 265 , 335 S.E.2d 637 (1985); Minor v. McDaniel, 210 Ga. App. 146 , 435 S.E.2d 508 (1993); Bayview Loan Servicing, LLC v. Baxter, 312 Ga. App. 826 , 720 S.E.2d 292 (2011).

Applicability

Statute refers only to contractual liens, not liens acquired by operation of law. Thus, an unrecorded deed is superior to a subsequent judgment lien. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978) (see O.C.G.A. § 44-2-2 ).

Word "lien," as used in the phrase "who may have acquired a transfer or lien binding the same property," applies only to liens acquired by contract, and not to those obtained by judgment. Donovan v. Simmons, 96 Ga. 340 , 22 S.E. 966 (1895).

Statute has reference only to liens arising by contract, and not to judgments. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942) (see O.C.G.A. § 44-2-2 ).

Word "lien" refers solely to liens acquired by contract to the exclusion of liens created or arising by operation of law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), for comment, see 18 Ga. B.J. 82 (1955).

In determining that a debtor's transfer of a security interest in certain real property to a judgment creditor occurred for purposes of 11 U.S.C. § 547(b) when the creditor's judgment lien was recorded, the court applied O.C.G.A. § 9-12-86 because: (1) case law holding that an unrecorded deed had priority over a recorded judgment lien was limited to O.C.G.A. § 44-2-2 and did not prevent the application of § 9-12-86 in the instant case; (2) § 9-12-86 provided an exception to the general rule of O.C.G.A. § 9-12-80 that a creditor acquired a lien when a judgment was entered; and (3) a trustee's imputed knowledge of a transfer was not relevant for purposes of 11 U.S.C. § 547. Pettigrew v. Hoey Constr. Co. (In re NotJust Another CarWash, Inc.), Bankr. (Bankr. N.D. Ga. Feb. 15, 2007).

Contests between common-law judgments. - Statute has no application to contests between ordinary common-law judgments. Griffith v. Posey, 98 Ga. 475 , 25 S.E. 515 (1896) (see O.C.G.A. § 44-2-2 ).

Contests between mortgage and distress warrant. - Statute is not applied in a contest between a mortgage and distress warrant for the appropriation of a fund arising from a sale of the mortgaged property. Jones v. Howard, 99 Ga. 451 , 27 S.E. 765 , 59 Am. St. R. 231 (1896) (see O.C.G.A. § 44-2-2 ).

Waiver was a recordable interest. - Bankruptcy court rejected the conclusion that a properly executed and attested waiver was not recordable under Georgia law as that conclusion elevated form over substance. The waiver stated that it was incorporated into and deemed to amend and supplement the security deed and, thus, notwithstanding its title, the waiver was in substance an amendment to the security deed and, therefore, a deed that was a recordable instrument under Georgia law. Kelley v. USAA Fed. Sav. Bank (In re Jones), 580 Bankr. 916 (Bankr. M.D. Ga. 2017).

Materialman's lien. - Rule of this statute is not applicable to a materialman's lien for the reason that actual recording is indispensable to the creation of liens of this character. Jones v. Kern, 101 Ga. 309 , 28 S.E. 850 (1897) (see O.C.G.A. § 44-2-2 ).

Materialman's lien had priority over later recorded security deed. - Subcontractor's lien filed before a lender's security deed was superior to the deed pursuant to O.C.G.A. § 44-2-2(b) . The general contractor's affidavit that the subcontractors had been or will be paid was insufficient to satisfy the plain language of O.C.G.A. § 44-14-361.2(a) , requiring a statement that payment had been made, and did not extinguish the lien. Ga. Primary Bank v. Atlanta Paving, Inc., 309 Ga. App. 851 , 711 S.E.2d 409 (2011).

Tax claims. - Provisions of this statute, declaring effective from the date of filing "deeds, mortgages, and liens of all kinds" as against third persons acting in good faith and without notice, have no application to claims for taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941) (see O.C.G.A. § 44-2-2 ).

Construed with § 9-13-60 . - Former Civil Code 1910, §§ 3320 and 3323 (see O.C.G.A. § 44-2-2 ) did not affect statutory method in former Civil Code 1910, §§ 6038 and 6039 (see O.C.G.A. § 9-13-60 ) for redeeming land of judgment debtor and subjecting the land to the judgment. Dedge v. Bennett, 138 Ga. 787 , 76 S.E. 52 (1912).

Section does not change rule in claim case. - Well settled rule, in a claim case, that the plaintiff in execution makes out a prima facie case by proving that the property claim was in possession of the defendant in fi. fa. after the rendition of the judgment, was not changed by the passage of this statute. Russell & Co. v. Morris, 134 Ga. 65 , 67 S.E. 404 (1910) (see O.C.G.A. § 44-2-2 ).

Section does not affect dormancy of judgment provision. - Former Civil Code 1910, §§ 4355, 4356, and 4357 (see O.C.G.A. § 9-12-60 ) as to dormancy of judgments was not affected by the passage of former Civil Code 1910, §§ 3320 and 3323 (see O.C.G.A. § 44-2-2 ). Columbus Fertilizer Co. v. Hanks, 119 Ga. 950 , 47 S.E. 222 (1904).

Docket

Section does not restrict clerk of the court to keeping only one book in which to make the prescribed entry as to filing for record of papers of the kinds specified. Touchstone Live Stock Co. v. Easters, 172 Ga. 454 , 157 S.E. 683 (1931).

One book for realty liens and another for personalty liens constitute docket. - If the clerk keeps one book as part of the clerk's docket in which are entered notations of the filing for record of deeds and mortgages and other liens on realty, which show the day and hour of filing, and another book as part of the clerk's docket in which are entered notations of the filing of record of deeds and mortgages and other liens on personalty, both books will constitute the docket. An entry of filing which states the day and hour of filing, made in either book, of an instrument retaining title in a vendor as security for the purchase price of personalty and also creating a mortgage on realty by the purchaser as additional security for the purchase price will comply with the law. Touchstone Live Stock Co. v. Easters, 172 Ga. 454 , 157 S.E. 683 (1931).

Priorities
1. In General

Deeds not recorded within 12 months. - Before the passage of this statute, when there was a contest between two deeds whereby a person conveyed the same land to different persons, and neither deed was recorded within 12 months from the date of the deed's execution, the older deed would prevail. Davis v. Harden, 143 Ga. 98 , 84 S.E. 426 (1915); Roles v. Shivers, 152 Ga. 798 , 111 S.E. 189 (1922); Randall v. Hamilton, 156 Ga. 661 , 119 S.E. 595 (1923) (see O.C.G.A. § 44-2-2 ).

Vendor must record out-of-state retention of title contract within six months. - When a person sells personal property in another state under a contract retaining title in the vendor until the payment of the purchase price, and the property is afterwards brought into this state, the vendor must, within six months after the property is so removed, record the instrument in the county where the vendee resided at the time of executing the instrument if a resident of this state, or in the county where the property is if the vendee is a nonresident, in order for the vendor to have priority over third persons acquiring in good faith and without notice interests in the property by a transfer or lien. Northern Fin. Corp. v. Hollingsworth, 52 Ga. App. 337 , 183 S.E. 73 (1935) (decided under former Code 1933, § 67-108, prior to adoption of T. 11).

Heir's recorded deed inferior to ancestor's unrecorded deed. - Prior to this statute, a recorded deed from an heir or devisee was inferior in dignity to an unrecorded deed of the ancestor. McCandless v. Inland Acid Co., 108 Ga. 618 , 34 S.E. 142 (1899); Equitable Loan & Sec. Co. v. Lewman, 124 Ga. 190 , 52 S.E. 599 , 33 L.R.A. (n.s.) 879 (1905) (see O.C.G.A. § 44-2-2 ).

Senior unrecorded deed loses priority over junior deed recorded without notice. - Following the passage of this statute, a senior unrecorded deed loses the deed's priority over a subsequent recorded deed from the same vendor, taken for a valuable consideration and without notice of the existence of the older deed. Dickson v. Champman, 153 Ga. 547 , 112 S.E. 830 (1922) (see O.C.G.A. § 44-2-2 ).

A junior deed, properly recorded, taken without notice of an unrecorded senior deed from the same vendor and for a valuable consideration, has priority over the unrecorded senior deed. Fourth Nat'l Bank v. Howell, 92 Ga. App. 868 , 90 S.E.2d 78 (1955).

When, in a contest between plaintiff and defendant as to title to certain described land, each claiming under a deed from a common grantor, the deed under which defendant claims having been given for a valuable consideration and executed prior to the deed under which plaintiff claims but recorded after plaintiff's deed, the deed under which plaintiff claims reciting a consideration of love and affection, the defendant's deed has priority over the plaintiff's deed. Minor v. Georgia Kraft Co., 219 Ga. 434 , 134 S.E.2d 19 (1963).

Recorded quitclaim deed, taken in good faith for valuable consideration, without notice, prevails over a prior unrecorded deed. This rule is not altered by the fact that the quitclaim deed conveys only the grantor's rights, title, and interest in and to the land, instead of conveying the land itself. Archer v. Kelley, 194 Ga. 117 , 21 S.E.2d 51 (1942).

Purchaser at judicial sale. - Under this statute, a purchaser of land at a judicial sale, acting in good faith and without notice, acquires title as against a prior conveyance by the owner, unrecorded at the time of the making and confirmation of the latter sale. Ousley & Bro. v. Bailey & Co., 111 Ga. 783 , 36 S.E. 750 (1900) (see O.C.G.A. § 44-2-2 ).

Valid deed, though unrecorded, is superior to subsequent judgment or attachment against the same property. Smith v. Worley, 10 Ga. App. 280 , 73 S.E. 428 (1912).

Effect of failure to record deeds and bills of sale. - Failure to record deeds and bills of sale has the same effect as failing to record deeds and bargains of sale. Carrollton Prod. Credit Ass'n v. Allen, 93 Ga. App. 150 , 91 S.E.2d 93 (1955).

Effect of a failure to record a security deed as against ordinary judgment liens is the same as the effect of a failure to record a deed of bargain and sale. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

Effect of a failure to record a mortgage or bill of sale to secure a debt shall be the same as is the effect of a failure to record a deed of bargain and sale. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), for comment, see 18 Ga. B.J. 82 (1955).

Right of transferee of second security deed. - When grantor made a deed to secure a debt, which was filed for record, and subsequently the same grantor made to another grantee a deed conveying the same property to secure a debt, which deed was filed for record at an earlier time, and when this grantee transferred and assigned the grantee's deed and the indebtedness thereby secured, receiving the full amount of the secured debt, as the transferee had no actual or constructive notice of the first deed, the grantee's right in and to the property conveyed in the deeds was unaffected by the prior deed. Nightingale v. Juniata College, 186 Ga. 365 , 197 S.E. 831 (1938).

Recorded conditional bill of sale. - Conditional bill of sale having been duly executed, attested, and recorded prior to the time of the issuing of the execution on the distress warrant, it had priority over a subsequent lien under a distress warrant for rent. Blackmar Co. v. Wright Co., 62 Ga. App. 861 , 10 S.E.2d 117 (1940).

Interests of innocent third parties. - Under this statute, an unrecorded contract retaining title in the vendor of personal property until full payment of the purchase money is not good as against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property. Bradley & Co. v. Cochran, 27 Ga. App. 463 , 108 S.E. 624 (1921) (see O.C.G.A. § 44-2-2 ).

Priority of attachment lien. - Attachment lien is superior to the lien of an unrecorded conditional sale contract executed before the issuance and levy of the attachment. Rhodes v. Jones, 55 Ga. App. 803 , 191 S.E. 503 (1937).

2. Construction of Section as to Deeds

Former Civil Code 1895, §§ 2778 and 2881 (see O.C.G.A. § 44-2-2 ) must be construed with former Civil Code 1895, § 3618 (see O.C.G.A. § 44-2-1 ). White v. Interstate Bldg. & Loan Ass'n, 106 Ga. 146 , 32 S.E. 26 (1898); Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908); Price v. Watts, 223 Ga. 805 , 158 S.E.2d 406 (1967).

Not applicable unless junior grantee is bona fide purchaser. - Former Civil Code 1933, §§ 29-401, 67-2501, and 67-2503 (see O.C.G.A. §§ 44-2-1 and 44-2-2 ) were construed together, and did not apply in a contest between deeds unless the junior grantee was a bona fide purchaser for value. Minor v. Georgia Kraft Co., 219 Ga. 434 , 134 S.E.2d 19 (1963).

Recorded voluntary deed not given priority over prior unrecorded deed. - Construing former Civil Code 1895, §§ 2778, 2781, and 3618 (see O.C.G.A §§ 44-2-1 and 44-2-2 ), a voluntary deed, though duly recorded and taken without notice of a prior voluntary deed executed by the same grantor and not recorded, did not give to the second grantee a priority over the first. Toole v. Toole, 107 Ga. 472 , 33 S.E. 686 (1899).

Priority of unrecorded deed in Uniform Fraudulent Transfers Act action. - Judgment voiding a transfer of property as fraudulent under the Uniform Fraudulent Transfers Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., was reversed because, despite not being recorded, the 2002 security deed executed in favor of a former sister-in-law, pledging the property as collateral for a promissory note, gave the former sister-in-law, as one of the defendant's creditors, priority over the plaintiff's judgment, such that the property could not be characterized as the defendant's asset under the UFTA. Wallin v. Wallin, 341 Ga. App. 440 , 800 S.E.2d 617 (2017).

3. Notice

What constitutes notice of prior deed. - Any circumstance which would place a person of ordinary prudence fully upon the person's guard and induce serious inquiry is sufficient to constitute notice of a prior unrecorded deed, and a younger deed, taken with such notice, acquires no preference by being recorded in due time. Price v. Watts, 223 Ga. 805 , 158 S.E.2d 406 (1967).

Neighbor's 2008 deeds were recorded before the brothers' 1977 deed and the brother's repeated and visible activities in the riverbed did not put the neighbor on notice of the brothers' claim to own the entire riverbed; all of the brothers' activities were consistent with the brothers' easement rights and the trial court did not err in concluding that the neighbor was an innocent purchaser who bought the riverbed without notice that the brothers claimed ownership. Thomas v. Henry County Water & Sewerage Auth., 317 Ga. App. 258 , 731 S.E.2d 66 (2012).

Unrecorded deed by testatrix is inferior as without notice. - Following the passage of this statute, an unrecorded deed made by a testatrix is ordinarily to be regarded as inferior in dignity to a deed, duly recorded, subsequently made by her devisee to an innocent purchaser for value without notice of the prior conveyance. But this statute has no application to a case where the testatrix recognized in her will the title of her donee, and the purchaser from her devisee was thus put upon notice that the property conveyed to him formed no part of the estate of the testatrix and could not be regarded as passing to the devisee under the residuary clause of the will. Equitable Loan & Sec. Co. v. Lewman, 124 Ga. 190 , 52 S.E. 599 , 33 L.R.A. (n.s.) 879 (1905) (see O.C.G.A. § 44-2-2 ).

Burden of proof. - Onus is on third party in possession of property covered by retention of title contract entered into in another state and not recorded in this state within the statutory period to show that the third party acquired that party's interest in good faith and without actual notice of the vendor's retention of title. Northern Fin. Corp. v. Hollingsworth, 52 Ga. App. 337 , 183 S.E. 73 (1935) (decided under former Code 1933, § 67-108, and prior to adoption of T. 11).

Burden of showing notice of secret equity on equity's owner. - When a creditor sought to enforce a legal right arising from a judgment lien on land while title was in the husband, the burden of showing that the creditor had notice of wife's secret equity was on the wife. Word v. Bowen, 181 Ga. 736 , 184 S.E. 303 (1936).

Duty of grantee to record deed. - It is plain duty of a grantee to record the grantee's deed, thereby giving constructive notice to everyone of the deed's existence and of the grantee's rights thereunder; and since it is thus made the duty of the grantee to supply notice, everyone is justified in relying upon an examination of the record and believing that a purchase of land will convey all title which the record fails to disclose is in another. Archer v. Kelley, 194 Ga. 117 , 21 S.E.2d 51 (1942).

When recording does not constitute notice. - Registry of a deed not legally attested, proved, or acknowledged is not constructive notice to a subsequent bona fide purchaser. Coniff v. Hunnicutt, 157 Ga. 823 , 122 S.E. 694 (1924).

Even if deed is recorded, in order to operate as constructive notice to a bona fide purchaser, the deed must not lie outside the purchaser's chain of title. Jenkins v. Sosebee, 74 Bankr. 440 (Bankr. N.D. Ga. 1987).

Filing mortgage lien constitutes notice. - Filing of a mortgage in the office of the clerk of the superior court of the county in which the land lies is, from the time of filing, notice to the world of the mortgage's existence; therefore, the lien of a mortgage so filed, though not properly recorded, is superior to that of common-law executions entered on the docket after the filing of the mortgage. Merrick v. Taylor, 14 Ga. App. 81 , 80 S.E. 343 (1913).

An entry of filing, made in a book kept by a clerk for the filing for record of mortgages and other liens on personalty, of an instrument retaining title in a vendor as security for the purchase price of personalty, and also creating a mortgage on the realty by the purchaser as additional security for the purchase price, will be notice to a subsequent purchaser of the realty. Lasch v. Columbus Heating & Ventilating Co., 174 Ga. 618 , 163 S.E. 486 , answer conformed to, 45 Ga. App. 200 , 164 S.E. 211 (1932).

Sufficiency of description of land conveyed. - Registered security deed reciting as matter of description that the land thereby conveyed is situated in a named city, county, and state, and further describing the land by reference to a designated map and other papers, is sufficient to put a subsequent purchaser of this lot from the same grantor on notice as to what land was in fact conveyed by the deed. Talmadge Bros. & Co. v. Interstate Bldg. & Loan Ass'n, 105 Ga. 550 , 31 S.E. 618 (1898).

That a recorded security deed from a grantor to the grantee contained an incorrect land lot designation did not mean that a mortgagee of the property was not on notice of the deed under O.C.G.A. § 44-2-2(b) because the incorporation of the subdivision plat in the deed provided a key to locating the property. Therefore, the grantee's deed was valid. Deljoo v. SunTrust Mortg., Inc., 284 Ga. 438 , 668 S.E.2d 245 (2008).

Notice of foreclosure sale held sufficient. - Because the debtor failed to send written notice of the correct address of the subject property to the bank or the bank's agents, and could not assert an absent grantee's priority to escape the consequences of the debtor's own failure to provide a correct property address to all future holders of the note and deed, the foreclosure sale was not set aside; thus, the trial court properly granted summary judgment to the bank and the assignees of the security interest on the ground that the bank provided sufficient notice of the foreclosure sale. Jackson v. Bank One, 287 Ga. App. 791 , 652 S.E.2d 849 (2007), cert. denied, No. S08C0335, 2008 Ga. LEXIS 169 (Ga. 2008).

Only deed to same land constitutes muniment of purchaser's title. - In view of the provisions of this statute, a deed which constitutes one of the muniments of a purchaser's title is a deed to the same land, and not a deed from the purchaser's grantor to other land, and this is true even though the prior deed of the purchaser's grantor conveys a lot or parcel of the same general tract. Hancock v. Gumm, 151 Ga. 667 , 107 S.E. 872 , 16 A.L.R. 1003 (1921) (see O.C.G.A. § 44-2-2 ).

4. Filing

Presentation of the instruments to the office of the clerk constitutes a proper filing. Pease & Elliman Realty Trust v. Gaines, 160 Ga. App. 125 , 286 S.E.2d 448 (1981).

Instrument takes effect from time of filing. - Following the passage of this statute, the filing for record of a mortgage which on the mortgage's face is entitled to be recorded is notice to all third persons without notice, although the mortgage may be afterwards so defectively recorded that the actual record is not such notice. In such a case, the filing for record is sufficient notice to all third persons without notice. Durrence v. Northern Nat'l Bank, 117 Ga. 385 , 43 S.E. 726 (1903); Greenfield v. Stout, 122 Ga. 303 , 50 S.E. 111 (1905); Henderson v. Armstrong, 128 Ga. 804 , 58 S.E. 624 (1907); Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908); Albany Nat'l Bank v. Georgia Banking Co., 137 Ga. 776 , 74 S.E. 267 (1912); Blakely Artesian Ice Co. v. Clarke, 13 Ga. App. 574 , 79 S.E. 526 (1913); Brown v. Aaron, 20 Ga. App. 592 , 93 S.E. 258 (1917).

Lien of a mortgage on realty will be effective, as against subsequent purchasers from the mortgagor, from the date of the filing. Touchstone Live Stock Co. v. Easters, 172 Ga. 454 , 157 S.E. 683 (1931).

Competing deeds, as against each other, were effective only from and after being filed for record. Such was the clear import of the language of former Code 1933, §§ 29-401, 67-2501, and 67-2503 (see O.C.G.A. §§ 44-2-1 and 44-2-2 ). Fourth Nat'l Bank v. Howell, 92 Ga. App. 868 , 90 S.E.2d 78 (1955).

Deed providing easement took priority. - Deed to the appellee, which provided an easement over the appellant's property, took priority over a deed to the appellant, which did not mention the easement, since the deed to the appellee was recorded first. Church of the Nativity, Inc. v. Whitener, 249 Ga. App. 45 , 547 S.E.2d 587 (2001).

It is the date of filing, not the date of recording, that fixes rights under the law with respect to instruments required to be recorded. Giordano v. Stubbs, 228 Ga. 75 , 184 S.E.2d 165 (1971), appeal dismissed and cert. denied, 405 U.S. 908, 92 S. Ct. 960 , 30 L. Ed. 2 d 779 (1972).

Effectiveness of filing not affected by manner of recording. - Owner and holder of a deed, mortgage, conditional sales contract, and other liens required by law to be recorded in the office of the clerk of the superior court, is protected by filing the owner's paper with the clerk of the court, whose duty it is to record the filing on a public docket required for that purpose. Improper record, or no record at all, has no effect on the efficacy of the filing. Buchanan v. Georgia Acceptance Co., 61 Ga. App. 476 , 6 S.E.2d 162 (1939).

When a deed which appears on the deed's face to be entitled to record is filed for record in the office of the clerk of the superior court of the county in which the land lies, it takes effect, as against third persons without notice, from the time it is so filed. The actual recording is the duty of the clerk, and this statute does not contemplate that an erroneous performance shall operate to defeat the grantee who has properly filed the grantee's deed. Thomas v. Hudson, 190 Ga. 622 , 10 S.E.2d 396 (1940) (see O.C.G.A. § 44-2-2 ).

When a deed is filed for record in the office of the clerk of the superior court of the county in which the land lies, the deed takes effect, as against third persons without notice, from the time the deed is so filed, and the deed is admissible in evidence as "a registered deed" without further proof of the deed's execution, although the clerk may have failed to record the deed or may have recorded the deed in the wrong book. Pease & Elliman Realty Trust v. Gaines, 160 Ga. App. 125 , 286 S.E.2d 448 (1981).

Clerk liable for improper filing or recording. - If any injury is done by the failure to record a paper, or by the improper recording of a paper, the clerk would be liable to the injured party for a breach of duty; filing puts the world on notice as to the contents of papers filed for record, whether the papers are recorded or not. This law, however, can only apply if there is a proper filing of the paper to be recorded, and a filing under circumstances in which an improper filing and indexing and an improper recording occurs could be charged as a breach of duty on the part of the clerk. Buchanan v. Georgia Acceptance Co., 61 Ga. App. 476 , 6 S.E.2d 162 (1939).

Parties to Instrument

Recordation unnecessary as between maker of security deed and grantee. - It is not essential, in order to convey title to land to secure a debt as between the maker and the grantee, that the deed should be recorded. As between the maker of the security deed and the grantee, the latter would get a good title. Cooper v. Bacon, 143 Ga. 64 , 84 S.E. 123 (1915).

Because the security deed between debtors and lender was effective as between those parties at execution, it was not relevant that the security deed was recorded within 90 days prior to debtors filing a petition in bankruptcy; under the doctrine of equitable subrogation, the security deed was not avoidable as a preferential transfer. Gordon v. NovaStar Mortg., Inc. (In re Hedrick), Bankr. (Bankr. N.D. Ga. Aug. 31, 2005), aff'd, 524 F.3d 1175 (11th Cir. 2008); modified and reh'g denied, 529 F.3d 1026 (11th Cir. 2008).

Wife of deceased life estate holder. - Trial court erred in determining that a second wife acquired a one-half interest in property quitclaimed to her by her husband because the husband had only a life estate in the property, and she was not a bona fide purchaser. The parties' lender, however, was a bona fide purchaser for value pursuant to O.C.G.A. §§ 44-2-1 , 44-2-2 , and 44-2-4(b) . Price v. Price, 286 Ga. 753 , 692 S.E.2d 601 (2010).

OPINIONS OF THE ATTORNEY GENERAL

Instruments effective against third parties only from date filed for record. - Deeds, mortgages, and liens take effect against third parties acting in good faith and without notice only from the time those instruments are filed for record. 1945-47 Op. Att'y Gen. p. 120.

Docket kept and recorded in well-bound books. - Clerk of the superior court must keep the dockets identified and described in O.C.G.A. § 15-6-61(4) either by microfilm, photographic or photostatic process, or in well-bound books, except that all instruments evidencing the title to real property, including the docket identified and described in subsection (a), and title instruments for personal property if recorded for ten years or less, must be kept and recorded in well-bound books only. For real property instruments which identify a grantor and a grantee, either a duplex index book or a cross-reference card index system for indexing such instruments must be maintained. The clerk may use the computer services of the county in which the clerk's office is located as a supplemental means of providing access to the information contained in the dockets and indexes maintained by the clerk. 1988 Op. Att'y Gen. No. U88-26.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 133 et seq.

C.J.S. - 76 C.J.S., Records, §§ 20, 37 et seq.

ALR. - Priority where senior instrument affecting real property is recorded after execution but before recording of junior instrument, 32 A.L.R. 344 .

Constructive notice by record of instrument relating to specific chattels as affected by changes therein, 63 A.L.R. 1456 .

Validity of unfiled chattel mortgage as against persons with actual notice thereof, 68 A.L.R. 274 .

Purchase-money mortgage as within provision of statute defeating or postponing lien of unrecorded or unfiled mortgage, 137 A.L.R. 571 ; 168 A.L.R. 1164 .

Priority between devisee under devise pursuant to testator's agreement and third person claiming under or through testator's unrecorded deed, 7 A.L.R.2d 544.

Priority, as between holder of unfiled or unrecorded chattel mortgage who secures possession of goods or chattels, and subsequent purchaser or encumbrancer, 53 A.L.R.2d 936.

Sale of real property as affecting time for filing notice of or perfecting mechanic's lien as against purchaser's interest, 76 A.L.R.2d 1163.

Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of, or purchasers from, vendor, 82 A.L.R.3d 1040.

44-2-3. Voluntary deeds or conveyances of land; effect of recording.

Every unrecorded voluntary deed or conveyance of land made by any person shall be void as against subsequent bona fide purchasers for value without notice of such voluntary deed or conveyance; provided, however, that, if the voluntary deed or conveyance is recorded in accordance with Code Section 44-2-1, it shall have priority over subsequent deeds or conveyances to the described land.

(Orig. Code 1863, § 2588; Code 1868, § 2590; Code 1873, § 2632; Code 1882, § 2632; Civil Code 1895, § 3530; Civil Code 1910, § 4110; Code 1933, § 96-205; Ga. L. 1943, p. 400, § 1; Code 1933, § 29-401.1, enacted by Ga. L. 1964, p. 475, § 1.)

Law reviews. - For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). For article, "Eleventh Circuit Survey: January 1, 2008 - December 31, 2008: Article: Trial Practice and Procedure," see 60 Mercer L. Rev. 1313 (2009).

JUDICIAL DECISIONS

Section applies to subsequent purchasers from grantor's agents, but not others. - This statute, while including bona fide purchasers from administrators, executors, and others who in effect sell land as agents of the grantor making the voluntary conveyance, does not include purchasers acquiring title from other sources. Harper v. Paradise, 233 Ga. 194 , 210 S.E.2d 710 (1974) (see O.C.G.A. § 44-2-3 ).

Effect of restrictive covenants in unrecorded instrument. - Purchaser of land without actual notice may take free of restrictive covenants contained in an unrecorded contract or deed. Jenkins v. Sosebee, 74 Bankr. 440 (Bankr. N.D. Ga. 1987).

What constitutes a voluntary conveyance. - Voluntary conveyance is one made without any consideration deemed valuable in law to support the conveyance. Clayton v. Tucker, 20 Ga. 452 (1856); Almond v. Gairdner & Arnold, 76 Ga. 699 (1886).

Voluntary conveyance depends upon the intention of the parties, which is to be ascertained by an inquiry into all the facts and circumstances at the time of the conveyance's execution which will throw light upon the question as to whether the deed was a sale or gift. Martin v. White, 115 Ga. 866 , 42 S.E. 279 (1902); Shackelford v. Orris, 135 Ga. 29 , 68 S.E. 838 (1910).

Payment necessary to constitute bona fide purchase. - Actual payment of the purchase price, before notice, is essential to the maintenance of the claim that one is a bona fide purchaser of property for value and without notice. Rowe v. Gaskins, 148 Ga. 817 , 98 S.E. 493 (1919).

Grantee in security deed acting in good faith stands in attitude of bona fide purchaser, and is entitled to the same protection. Roop Grocery Co. v. Gentry, 195 Ga. 736 , 25 S.E.2d 705 (1943).

Priority of landlord's lien. - Bona fide purchaser without notice will be protected against a landlord's lien for rent. Thornton v. Carver, 80 Ga. 397 , 6 S.E. 915 (1888).

Avoidance by bankruptcy trustee. - Bankruptcy trustee was entitled to avoid a lien on real property under the strong arm powers because a hypothetical bona fide purchaser of the property would have prevailed over the bank's interest as of the date of the commencement of the case; the bank's cancellation of a lien was the last document in the records. Moreover, the bank failed to reinstate the security deed prior to the trustee's intervention as a bona fide purchaser. AFB&T v. Custom Contrs. & Assocs. (In re Custom Contrs. & Assocs.), Bankr. (Bankr. S.D. Ga. Dec. 3, 2009).

Although the debtor executed a deed to secure debt in favor of the defendant that conveyed an interest in certain property prior to the debtor's petition date, the security deed was not recorded by the defendant until after the defendant's petition date. Under Georgia law, an unrecorded voluntary deed or conveyance was void as against a subsequent bona fide purchaser (BFP) for value without notice of such voluntary deed or conveyance and, thus, the trustee, who was a BFP on the date the petition was filed, could avoid the transfer and preserve the transfer for the benefit of the estate. Lubin v. Murphy (In re Murphy), Bankr. (Bankr. N.D. Ga. Oct. 13, 2017).

To sustain voluntary conveyance against subsequent bona fide purchaser, notice to purchaser must be actual. Finch v. Woods, 113 Ga. 996 , 39 S.E. 418 (1901); Scott v. Atlas Sav. & Loan Ass'n, 114 Ga. 134 , 39 S.E. 942 (1901); Waters v. Wells, 155 Ga. 439 , 117 S.E. 322 (1923); Roop Grocery Co. v. Gentry, 195 Ga. 736 , 25 S.E.2d 705 (1943).

Constructive notice alone is not sufficient to defeat the rights of a subsequent bona fide purchaser. Herndon v. Kimball, 7 Ga. 432 , 50 Am. Dec. 406 (1849); Byrd v. Aspinwall, 108 Ga. 1 , 33 S.E. 688 (1899) (decided prior to Orig. Code 1863, § 2588 and under Civil Code 1895, § 3530).

Registration is insufficient notice to bona fide purchaser. - Registration of a voluntary deed does not constitute such notice to a subsequent bona fide purchaser as will deprive the purchaser of the preference to which the purchaser is entitled. Fleming v. Townsend, 6 Ga. 103 , 50 Am. Dec. 318 (1849); Finch v. Woods, 113 Ga. 996 , 39 S.E. 418 (1901). For additional cases, see 6 Enc. Dig. 642.

Section includes subsequent purchasers from grantor's agents, but not others. - This statute, providing that "every voluntary deed or conveyance made by any person shall be void as against subsequent bona fide purchasers for value without notice of such voluntary conveyance," while including bona fide purchasers from administrators, executors, and others who in effect sell land as agents of the grantor making the voluntary conveyance, does not include purchasers acquiring title from other sources. Mathis v. Solomon, 188 Ga. 311 , 4 S.E.2d 24 (1939) (see O.C.G.A. § 44-2-3 ).

When an original owner executed a voluntary deed to a life tenant and remainderman, and the life tenant executed a deed in fee simple to a bona fide purchaser without notice, this statute would not pass a superior title or create a superior equity in favor of such a purchaser from the life tenant. Mathis v. Solomon, 188 Ga. 311 , 4 S.E.2d 24 (1939) (decided under former Code 1933, § 96-205).

Notice once recorded. - Under Georgia's recording statute, O.C.G.A. § 44-2-3 , the world was on notice of mortgage company's security deed once the deed was recorded; because of that, no one who purchased an interest after recording of that security deed could have been a bona fide purchaser of interest superior to mortgage company's. Gordon v. Novastar Mortg., Inc. (In re Hedrick), 524 F.3d 1175 (11th Cir. 2008), cert. denied, 129 S. Ct. 631 , 172 L. Ed. 2 d 610 (2008).

Dispute based on recording of land sales contract. - Recording of a contract to sell land took priority over a later recorded deed transferring the disputed land. Parks v. Stepp, 277 Ga. 704 , 594 S.E.2d 364 (2004).

Internal Revenue Service lien. - Claim by the Internal Revenue Service that a reformation of a conveyance deed that had failed to describe all of the property that was being transferred had no effect on a prior lien filed by the IRS had no merit because O.C.G.A. § 44-2-3 (on which the IRS was relying) provided only that an unrecorded conveyance was void only against certain subsequent bona fide purchasers and did not mention creditors such as the IRS. Nat'l Assistance Bureau, Inc. v. Macon Mem'l Intermediate Care Home, Inc., F. Supp. 2d (M.D. Ga. June 8, 2009).

Chapter 13 trustee was bona fide purchaser. - When a security deed executed by Chapter 13 debtors had the correct street address for the collateral but an incorrect legal description, the secured creditor was not entitled to postconfirmation reformation of the deed because the Chapter 13 trustee was a hypothetical bona fide purchaser; there was nothing in the chain of title that would have put the trustee on constructive or inquiry notice of the defect. Midfirst Bank v. Hill (In re Hill), Bankr. (Bankr. S.D. Ga. Sept. 29, 2010).

Cited in Leggett v. Patterson, 114 Ga. 714 , 40 S.E. 736 (1902); West v. Wright, 121 Ga. 470 , 49 S.E. 285 (1904); Culbreath v. Martin, 129 Ga. 280 , 58 S.E. 832 (1907); Stubbs v. Glass, 143 Ga. 56 , 84 S.E. 126 (1915); Leachman v. Cobb Dev. Co., 226 Ga. 103 , 172 S.E.2d 688 (1970); Pressley v. Jennings, 227 Ga. 366 , 180 S.E.2d 896 (1971); Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526 , 266 S.E.2d 148 (1980); Minor v. McDaniel, 210 Ga. App. 146 , 435 S.E.2d 508 (1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 7, 191. 58 Am. Jur. 2d, Notice, § 18.

C.J.S. - 26A C.J.S., Deeds, § 158.

ALR. - Use of diminutive or nickname as affecting operation of record as notice, 45 A.L.R. 557 .

Presumption and burden of proof as regards good faith and consideration on part of purchaser or one taking encumbrancer subsequent to unrecorded conveyance or encumbrance, 107 A.L.R. 502 .

Rule which makes priority of title depend upon priority of record as applied to record of later instrument in second chain title which antedates record of original instrument in first chain record of which, however, antedated record of original instrument in second chain, 133 A.L.R. 886 .

Priority between devisee under devise pursuant to testator's agreement and third person claiming under or through testator's unrecorded deed, 7 A.L.R.2d 544.

44-2-4. Protection of good faith purchases and liens without notice against unrecorded liens or conveyances.

  1. All innocent persons, firms, or corporations acting in good faith and without actual notice which purchase real or personal property for value or obtain contractual liens on the property from distributees, devisees, legatees, or heirs at law holding or apparently holding real or personal property by will or inheritance from a deceased person shall be protected in the purchase of the property or in acquiring such a lien thereon as against unrecorded liens or conveyances created or executed by the deceased person upon or to the property in like manner and to the same extent as if the property had been purchased or the lien acquired from the deceased person.
  2. All innocent persons, firms, or corporations which purchase real or personal property for value or obtain contractual liens on the property from a surviving joint tenant, or surviving joint tenants, holding or apparently holding real or personal property as a surviving joint tenant, or surviving joint tenants, shall be protected in the purchase of the property or in acquiring such a lien thereon as against unrecorded liens or conveyances created or executed by a deceased joint tenant upon or to the property, and as against other unrecorded instruments resulting in a severance of any joint tenant's interest, in like manner and to the same extent as if the property had been purchased or the lien acquired from the deceased joint tenant and surviving joint tenant, or surviving joint tenants.

    (Ga. L. 1912, p. 143, § 1; Code 1933, § 67-2502; Ga. L. 1984, p. 1335, § 1.)

JUDICIAL DECISIONS

Statute cannot be extended beyond the statute's terms to aid bona fide purchaser from life tenant as against a remainderman who does not join in the conveyance. Mathis v. Solomon, 188 Ga. 311 , 4 S.E.2d 24 (1939); Harper v. Paradise, 233 Ga. 194 , 210 S.E.2d 710 (1974) (see O.C.G.A. § 44-2-4 ).

Wife of deceased life estate holder was not a bona fide purchaser. - Trial court erred in determining that a second wife acquired a one-half interest in property quitclaimed to her by her husband because the husband had only a life estate in the property, and she was not a bona fide purchaser. The parties' lender, however, was a bona fide purchaser for value pursuant to O.C.G.A. §§ 44-2-1 , 44-2-2 , and 44-2-4(b) . Price v. Price, 286 Ga. 753 , 692 S.E.2d 601 (2010).

Impact of failure to probate a will. - Trial court did not err in granting a bank's motion for summary judgment in the bank's quiet title action against a testator's niece and great-niece on the ground that under O.C.G.A. § 44-2-4(a) , the priority of a security deed the testator's stepson gave to a mortgage company, which assigned its interest in the property to the bank, was protected from the interests the niece and great-niece held that were grounded in the testator's unrecorded will because there was nothing in the record that would render O.C.G.A. § 44-2-4(a) inapplicable since the notice created by the possession of the niece and great-niece was only constructive notice, and there was no evidence that the company had any actual notice of the will or of the interests created thereby; the statute applies equally to give protection to those who take an interest in realty when there are other interests that exist, but are not of record, because of a failure to probate a will. Riggins v. Deutsche Bank Nat'l Trust Co., 288 Ga. 850 , 708 S.E.2d 266 (2011).

Cited in Michael v. Poss, 209 Ga. 559 , 74 S.E.2d 742 (1953).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 144.

ALR. - Priority, as between holder of unfiled or unrecorded chattel mortgage who secures possession of goods on chattels, and subsequent purchaser or encumbrancer, 53 A.L.R.2d 936.

Construction and effect of "marketable record title" statutes, 31 A.L.R.4th 11.

44-2-5. Recording execution and deed after sheriff's sale.

A purchaser at a sheriff's sale may have the execution under which the property was sold recorded with his or her deed together with all the entries on the execution.

(Laws 1845, Cobb's 1851 Digest, p. 179; Code 1863, § 2671; Code 1868, § 2667; Code 1873, § 2709; Code 1882, § 2709; Civil Code 1895, § 3625; Civil Code 1910, § 4207; Code 1933, § 29-412; Ga. L. 2011, p. 99, § 76/HB 24.)

The 2011 amendment, effective January 1, 2013, inserted "or her" in the first sentence and deleted the second sentence, which read: "In the event of the loss or destruction of the original execution, a copy of the record shall be admitted in evidence." See Editor's notes for applicability.

Editor's notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Cited in Mayor of Fort Valley v. Levin, 183 Ga. 837 , 190 S.E. 14 (1937); Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

RESEARCH REFERENCES

C.J.S. - 26A C.J.S., Deeds, § 424.

44-2-6. Recording bond for title, contracts, transfers, and assignments; priority as to subsequent deeds taken without notice from same vendor.

Every bond for title, bond to reconvey realty, contract to sell or convey realty or any interest therein, and any and all transfers or assignments of realty shall be filed and recorded in the office of the clerk of the superior court of the county where the land referred to in the instrument is located. The filing and recording shall, from the date of filing, be notice of the interest and equity of the holder of the instrument in the property described therein. The filing and recording may be made at any time; but such bond for title, bond to reconvey realty, contract to sell or convey realty or any interest therein, and any transfer or assignment of realty shall lose its priority over deeds, loan deeds, mortgages, bonds for titles, bonds to reconvey realty, contracts to sell or convey realty or any interest therein and any transfer or assignment of realty from the same vendor, obligor, transferor, or assignor which is executed subsequently but filed for record first and is taken without notice of the former instrument.

(Ga. L. 1900, p. 68, §§ 1, 2; Civil Code 1910, §§ 4213, 4214; Ga. L. 1921, p. 157, § 2; Code 1933, §§ 29-418, 29-418.1.)

Law reviews. - For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004).

JUDICIAL DECISIONS

Purpose of 1921 amendments. - Amendment of statute in 1921 was passed to supplement the original section. McClure v. Smith, 115 Ga. 709 , 42 S.E. 53 (1902); Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596 , 110 S.E. 873 (1922) (see O.C.G.A. § 44-2-6 ).

Amendment of this statute in 1921 made further provision for recording bonds for title, supplements the original language of this statute, and made plainer the statute's meaning. Fender v. Hodges, 166 Ga. 727 , 144 S.E. 278 (1928) (see O.C.G.A. § 44-2-6 ).

Priority of contract over deed. - Recording of a contract to sell land took priority over a later recorded deed transferring the disputed land. Parks v. Stepp, 277 Ga. 704 , 594 S.E.2d 364 (2004).

Primary intent and purpose of this statute was to give notice to all persons dealing with the obligor, from the date of the filing of the bond, of the interest and equity of the holder of the bond in the property therein described so that any one acquiring a lien on or title to the property after the filing of the bond would take the property subject to the interest and equity of the obligee in the bond. Gleaton v. Wright, 149 Ga. 220 , 100 S.E. 72 (1919); Fender v. Hodges, 166 Ga. 727 , 144 S.E. 278 (1928); Peterson v. Perry, 191 Ga. 816 , 14 S.E.2d 100 (1941).

Phrase "equity of the holder" refers to equity as is derived from terms of instrument, and not to some other equity which the holder has in the property. Peterson v. Perry, 191 Ga. 816 , 14 S.E.2d 100 (1941).

Obligee in a recorded bond is protected to the extent of purchase money actually paid before notice of the rights of a grantee in a senior unrecorded deed from the obligor in the bond. The recorded bond for title does not take priority over the unrecorded senior deed to the extent of the entire estate purchased. Gleaton v. Wright, 149 Ga. 220 , 100 S.E. 72 (1919).

Transfer under security deed on same basis as to recordation as deed itself. - Transfer of title held under the security deed, made to assign all interest in the debt secured as in the land as security therefor, stands on the same basis as to execution and recordation as the deed itself. Citizens & S. Bank v. Farr, 164 Ga. 880 , 139 S.E. 658 (1927); Mortgage Guarantee Co. of Am. v. Atlanta Com. Bank, 166 Ga. 412 , 143 S.E. 562 (1928).

Recorded security deed entitled to priority over unrecorded bond for title. - After one obtained and duly recorded a security deed without notice of any kind of the existence of prior unrecorded bond for title from one's grantor to the same land, the former is entitled to priority in the distribution of the proceeds derived from the sale of the land. The same priority exists in favor of subsequent holders under duly recorded deeds as against a transferee of the bond, such transfer never having been recorded. Fender v. Hodges, 166 Ga. 727 , 144 S.E. 278 (1928).

Recording of collateral assignment. - When a collateral assignment was properly recorded, purchasers were presumed thereby to have bought real property with knowledge of the assignee's power to foreclose under the collateral assignment, and the purchasers were not bona fide purchasers for value without notice; thus, the assignee's security interest took priority over the purchasers' rights. Palmetto Capital Corp. v. Smith, 284 Ga. App. 819 , 645 S.E.2d 9 (2007), cert. denied, 2007 Ga. LEXIS 649 (Ga. 2007).

Priority between contracts for sale. - Because a sales contract was recorded first, the description of the boundaries contained therein prevailed, and the landowners therein enjoyed superior title to any disputed property within the bounds of that description. Parks v. Stepp, 260 Ga. App. 431 , 579 S.E.2d 874 (2003), aff'd, 277 Ga. 704 , 594 S.E.2d 364 (2004).

Effect of restrictive covenants in unrecorded instrument. - Purchaser of land without actual notice may take free of restrictive covenants contained in an unrecorded contract or deed. Jenkins v. Sosebee, 74 Bankr. 440 (Bankr. N.D. Ga. 1987).

Cited in New London Square, Ltd. v. Diamond Elec. & Supply Corp., 132 Ga. App. 433 , 208 S.E.2d 348 (1974); Milligan v. Gilmore Meyer Inc., 775 F. Supp. 400 (S.D. Ga. 1991).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 4, 270. 66 Am. Jur. 2d, Records and Recording Laws, § 47.

ALR. - Use of diminutive or nickname as affecting operation of record as notice, 45 A.L.R. 557 .

Constructive trust against one holding merely bond for deed or other executory contract and not legal title, 173 A.L.R. 1275 .

Priority between devisee under devise pursuant to testator's agreement and third person claiming under or through testator's unrecorded deed, 7 A.L.R.2d 544.

Risk of loss by casualty pending contract for conveyance of real property - modern cases, 85 A.L.R.4th 233.

44-2-7. Recording of surrender or satisfaction of bond for title.

When any bond for title has been recorded and is subsequently surrendered or satisfied, such surrender or satisfaction may be entered of record by the clerk of the superior court in the same manner that cancellations of mortgages and deeds to secure debts are entered of record.

(Ga. L. 1900, p. 68, § 3; Civil Code 1910, § 4215; Code 1933, § 29-419.)

44-2-8. Recording of options to purchase land and assignments of such options; effect as notice.

When executed with the formality prescribed for the execution of deeds to land, options to purchase land or any interest in land and assignments of such options to purchase may be recorded in the county in which the property described in the instrument is located. The record shall, from the date of filing, be notice of the interest and rights of the parties to the option to purchase in and with respect to the property described in the option to purchase and of the interest and rights of any person holding an assignment of the option to purchase.

(Ga. L. 1960, p. 858, § 1.)

44-2-9. Recording leases, usufructs, and assignments thereof; effect as notice.

When executed with the formality prescribed for the execution of deeds to land, leases or usufructs of land or of any interest in land and assignments of such leases or usufructs for any purpose, including the purpose of securing debt, may be recorded in the county where the property described in the instrument is located. The record shall, from the date of filing, be notice of the interest of the parties to the lease or usufructs in the property described in the instrument and of the interest of any person holding an assignment of any interest in such lease or usufruct.

(Ga. L. 1958, p. 413, § 1.)

Law reviews. - For article analyzing legal aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For note discussing lessee's option to purchase, see 22 Ga. B.J. 565 (1960). For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

OPINIONS OF THE ATTORNEY GENERAL

Lease itself, not a notice of the existence of a lease, should be recorded. 1968 Op. Att'y Gen. No. 68-157.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 52.

C.J.S. - 76 C.J.S., Records, § 11.

ALR. - Necessity of consideration to support option under seal, 2 A.L.R. 631 ; 21 A.L.R. 137 .

Priority where senior instrument affecting real property is recorded after execution but before recording of junior instrument, 32 A.L.R. 344 .

Validity of reservation of oil and gas or other mineral rights in deed of land, as against objection of repugnancy to the grant, 157 A.L.R. 485 .

Continued possession of tenant as constructive notice to third person of unrecorded transfer of title of original lessor, 1 A.L.R.2d 322.

Record of instrument which comprises or includes an interest or right that is not a proper subject of record, 3 A.L.R.2d 577.

44-2-10. Recording deeds and bills of sale to personalty; effect as notice.

Absolute deeds and bills of sale to personalty may be recorded in the office of the clerk of the superior court of the county where the maker resides. Such record, being permissive and not compulsory, is not constructive or implied notice to anyone. This Code section shall not apply to transactions covered by Article 9 of Title 11.

(Laws 1819, Cobb's 1851 Digest, p. 168; Ga. L. 1855-56, p. 142, § 1; Code 1863, § 2672; Code 1868, § 2668; Code 1873, § 2710; Code 1882, § 2710; Civil Code 1895, § 3626; Civil Code 1910, § 4208; Code 1933, § 29-413; Ga. L. 1962, p. 156, § 1.)

JUDICIAL DECISIONS

Former Civil Code 1910, § 4208 (see O.C.G.A. § 44-2-10 ) applied only to an absolute bill of sale. The law with reference to the registration and priority of bills of sale to secure debt was to be found in former Civil Code 1910, §§ 3306 and 3307 (see O.C.G.A. §§ 44-14-60 and 44-14-63 ). Balchin v. Jones, 10 Ga. App. 434 , 73 S.E. 613 (1912); Butler v. LaGrange Grocery Co., 29 Ga. App. 612 , 116 S.E. 213 (1923).

Effect, among concurrently dated documents, of prior recording. - Priority of recording gives priority among concurrently dated bills of sale to secure debt, if taken without notice to the others. Fourth Nat'l Bank v. Howell, 92 Ga. App. 868 , 90 S.E.2d 78 (1955).

Effect of recordation on title. - Recordation has no effect on the title to personalty, which is acquired by the grantee in the bill of sale upon the execution and delivery of the instrument by the grantor. Recording an absolute bill of sale to personalty under the provisions of statute has only the effect of making the instrument admissible in evidence without further proof of the instrument's execution. Jones v. Liberty Mut. Fire Ins. Co., 90 Ga. App. 667 , 83 S.E.2d 837 (1954).

Cited in Williams v. Logan & Mears, 32 Ga. 165 (1861); Jones v. Newberry, 16 Ga. App. 424 , 85 S.E. 617 (1915); Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964).

RESEARCH REFERENCES

C.J.S. - 76 C.J.S., Records, § 11.

ALR. - Record of instrument which comprises or includes an interest or right that is not a proper subject of record, 3 A.L.R.2d 577.

Priority between devisee under devise pursuant to testator's agreement and third person claiming under or through testator's unrecorded deed, 7 A.L.R.2d 544.

44-2-11. Recording copy of instrument recorded in other counties in which part of affected land is located in cases where original lost or destroyed.

A copy from the registry of any instrument conveying or affecting land in any county of this state which is recorded in the office of the clerk of the superior court of the county, if duly certified by the clerk, may be filed for record and recorded in the office of the clerk of the superior court of any other county where some of the land conveyed or affected by such instrument is located in the same manner and with the same force and effect for all purposes as if the certified copy were the original instrument, provided an affidavit is attached to the certified copy and recorded with it in which the affiant says that he owns an interest in property affected by the instrument, that the original instrument has been lost or destroyed, and that he truly believes that the original instrument was genuine.

(Ga. L. 1943, p. 577, § 1.)

44-2-12. Rerecording lost or destroyed deeds and other instruments; validity.

When the record of any deed or other recorded instrument or the certificate of record is lost or destroyed, the clerk of the superior court may rerecord the instrument and the certificate of record. The rerecording shall be as valid as the original recording and shall take effect from the date of the original recording, provided the rerecording is within 12 months after the loss or destruction of the original recording.

(Ga. L. 1882-83, p. 148, § 1; Civil Code 1895, § 3619; Civil Code 1910, § 4199; Code 1933, § 29-402.)

Cross references. - Admissibility of other evidence, § 24-10-1004 .

Admission of public records, § 24-10-1005 .

JUDICIAL DECISIONS

Constitutionality. - Attack on the constitutionality of this statute, on the ground that the Act from which this statute was codified was broader than the Act's title, was without merit. Ashburn v. Spirey, 112 Ga. 474 , 37 S.E. 703 (1900) (see O.C.G.A. § 44-2-12 ).

Retroactivity. - Statute has no retroactive effect upon deeds, the records of which were destroyed before the date of the statute's enactment. Ashburn v. Spirey, 112 Ga. 474 , 37 S.E. 703 (1900) (see O.C.G.A. § 44-2-12 ).

No date-back feature for corrective deeds. - While O.C.G.A. § 44-2-12 provides authorization for rerecorded deeds to have a date-back feature, no comparable authority exists for corrective deeds. Green Rivers Forest, Inc. v. Aetna Life Ins. Co., 200 Bankr. 956 (Bankr. M.D. Ga. 1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 72.

44-2-13. Rerecording instruments upon creation of new county or change in county lines; effect on validity of original record.

  1. When the creation of a new county or a change in county lines causes land to be included in a different county than that in which it was situated at the time of the recording of a deed, mortgage, or other lien therein, any holder of such a deed, mortgage, or other lien may have such instrument rerecorded in the office of the clerk of the superior court of the county in which the land is newly situated. If the original of such deed, mortgage, or other lien is lost, a certified copy thereof from the record where the same was recorded may in like manner be rerecorded in the county in which the land affected is newly situated. Upon payment of the recording fees, it shall be the duty of the clerk of the superior court of the county where the instrument is rerecorded to cause the deed, mortgage, or other lien to be entered upon the proper records for such papers; and the clerk shall note on the record book the date of the original recording and the book and page or pages upon which the deed or mortgage or other lien was originally recorded.
  2. The rerecording of a deed, mortgage, or other lien pursuant to subsection (a) of this Code section shall not affect the validity of the original record as notice.

    (Ga. L. 1908, p. 95, §§ 1, 2; Civil Code 1910, §§ 4200, 4201; Code 1933, §§ 29-403, 29-404.)

Cross references. - Filing of survey and plat of county for which boundaries have been changed, § 36-3-5 .

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 72.

C.J.S. - 26A C.J.S., Deeds, § 159.

44-2-14. Requirements for recordation.

  1. Except for documents electronically filed as provided for in Chapter 12 of Title 10, and in other Code sections in this part, before any deed to realty or personalty or any mortgage, bond for title, or other recordable instrument executed in this state may be recorded, it shall be an original instrument and shall be attested or acknowledged as provided by law. However, nothing in this Code section shall dispense with another witness where an additional witness is required. This Code section shall not apply to transactions covered by Article 9 of Title 11.
  2. No affidavit prepared under Code Section 44-2-20 and no instrument by which the title to real property or any interest therein is conveyed, created, assigned, encumbered, disposed of, or otherwise affected shall be entitled to recordation unless the name and mailing address of the natural person to whom the affidavit or instrument is to be returned is legibly printed, typewritten, or stamped upon such affidavit or instrument at the top of the first page thereof.
  3. If an instrument or affidavit is titled or recorded without compliance with subsection (b) of this Code section, such noncompliance does not alone impair the validity of the filing of recordation or of the constructive notice imparted by filing or recordation.
  4. Subsection (b) of this Code section does not apply to the following:
    1. An affidavit or instrument executed before July 1, 1994;
    2. A decree, order, judgment, or writ of any court;
    3. A will; or
    4. Any plat.

      (Laws 1785, Cobb's 1851 Digest, p. 164; Laws 1827, Cobb's 1851 Digest, pp. 171, 172; Laws 1839, Cobb's 1851 Digest, p. 177; Laws 1850, Cobb's 1851 Digest, pp. 180, 181; Ga. L. 1849-50, p. 149, § 1; Ga. L. 1853-54, p. 26, § 1; Code 1863, § 2668; Code 1868, § 2664; Code 1873, § 2706; Code 1882, § 2706; Ga. L. 1893, p. 37, § 1; Civil Code 1895, § 3620; Civil Code 1910, § 4202; Ga. L. 1924, p. 83, § 1; Ga. L. 1931, p. 153, § 1; Code 1933, § 29-405; Ga. L. 1963, p. 188, § 39; Ga. L. 1994, p. 1943, § 1; Ga. L. 2012, p. 173, § 1-33/HB 665.)

The 2012 amendment, effective July 1, 2012, in the first sentence of subsection (a), substituted "Except for documents electronically filed as provided for in Chapter 12 of Title 10, and in other Code sections in this part, before" for "Before" at the beginning and substituted "shall be an original instrument and shall be" for "must be" near the end.

JUDICIAL DECISIONS

"Other registrable instruments" construed. - Words "other registrable instruments" in this statute mean deeds and other instruments required by law to be executed with the formality of deeds. New London Square, Ltd. v. Diamond Elec. & Supply Corp., 132 Ga. App. 433 , 208 S.E.2d 348 (1974) (see O.C.G.A. § 44-2-14 ).

Words "or other registrable instrument" do not include a materialman's claim of lien. New London Square, Ltd. v. Diamond Elec. & Supply Corp., 132 Ga. App. 433 , 208 S.E.2d 348 (1974).

Statute provides two modes under which a deed may be recorded, by attestation or by acknowledgment. Ballard v. Orr, 105 Ga. 191 , 31 S.E. 554 (1898); Stallings v. Newton, 110 Ga. 875 , 36 S.E. 227 (1900); Hansen v. Owens, 132 Ga. 648 , 64 S.E. 800 (1909) (see O.C.G.A. § 44-2-14 ).

Deeds of realty and personalty may be acknowledged before, as well as attested by, an officer, or proven by the affidavit of a subscribing witness to prepare the deeds for record. Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).

For historical discussion of common law and statutory provisions on attestation and acknowledgment, see Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).

Effect of acknowledgment on title. - Acknowledgment, while required for recordation, is not necessary in order to convey title by a deed properly signed and delivered. Stallings v. Newton, 110 Ga. 875 , 36 S.E. 227 (1900); Northrop v. Columbian Lumber Co., 186 F. 770 (5th Cir. 1911).

Attestation of security deed. - First sentence of O.C.G.A. § 44-14-33 and the statutory recording scheme indicate that the word "duly" in the second sentence of § 44-14-33 should be understood to mean that a security deed is "duly filed, recorded, and indexed" only if the clerk responsible for recording determines, from the face of the document, that it is in the proper form for recording, meaning that it is attested or acknowledged by a proper officer and (in the case of real property) an additional witness; the General Assembly chose to enact the 1995 amendment to O.C.G.A. § 44-14-33 not as a freestanding Code provision but as an addition to a Code provision clearly referenced by O.C.G.A. § 44-14-61 , and the General Assembly is presumed to have been aware of the existing state of the law when the legislature enacted the 1995 amendment so the placement of the amendment makes complete sense. United States Bank Nat'l Ass'n v. Gordon, 289 Ga. 12 , 709 S.E.2d 258 (2011).

Instrument valid between parties even though unattested, or improperly attested. - Retention of title contract or a mortgage may be valid between the parties even though it is unattested, or improperly attested and not recorded and not entitled to be recorded because of such improper attestation. Central Bank & Trust Co. v. Creede, 103 Ga. App. 203 , 118 S.E.2d 844 (1961).

Alleged defect in notarization not apparent on face of document. - Trial court did not err in granting summary judgment to the corporations on the issue of whether the corporations had actual or constructive notice of fraud regarding the relatives' quitclaim deeds despite the relatives' assertions that the deeds were notarized after the deeds were signed and were notarized outside the presence of each of the relatives; even assuming the assertion was true, that defect in proper notarization was not apparent from the face of any of the deeds involved, all of which were signed, witnessed, and notarized. Bowman v. Century Funding, Ltd., 277 Ga. App. 540 , 627 S.E.2d 73 (2006).

Deed ineligible for recordation. - Deed was materially altered when an attachment containing the description of one of two parcels of property was removed, the deed was ineligible for recordation, and the buyer's failure to object to the recording of the altered deed did not support a finding that the buyer accepted the altered deed without objection as: (1) the seller did not resign the deed and it was not re-attested; (2) the buyer was not sent the altered deed or land description; (3) there was no evidence that the buyer consented to the alteration or that the buyer otherwise agreed to accept only one parcel of land; (4) the delivery of the altered deed to the bank's attorney was not constructive delivery to the buyer as the attorney represented the bank and the buyer had not authorized the attorney to accept and retain the recorded deed on the buyer's behalf; and (5) the buyer never received a copy of the altered deed or land description before or after it was recorded. Z & Y Corp. v. Indore C. Stores, Inc., 282 Ga. App. 163 , 638 S.E.2d 760 (2006).

Cited in Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964); Sullivan v. Sullivan, 286 Ga. 53 , 684 S.E.2d 861 (2009); Gordon v. Ameritrust Mortg. Co. LLC (In re Nesbitt), Bankr. (Bankr. N.D. Ga. Sept. 13, 2013).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 101.

C.J.S. - 26A C.J.S., Deeds, §§ 382 et seq., 394.

ALR. - Acknowledgment or oath over telephone, 12 A.L.R. 538 ; 58 A.L.R. 604 .

Sufficiency of certificate of acknowledgment, 29 A.L.R. 919 .

44-2-15. Officers authorized to attest registrable instruments.

Any of the instruments enumerated in Code Section 44-2-14 may be attested by a judge of a court of record, including a judge of a municipal court, or by a magistrate, a notary public, or a clerk or deputy clerk of a superior court or of a city court created by special Act of the General Assembly. With the exception of notaries public and judges of courts of record, such officers may attest such instruments only in the county in which they respectively hold their offices.

(Laws 1785, Cobb's 1851 Digest, p. 164; Laws 1827, Cobb's 1851 Digest, pp. 171, 172; Laws 1839, Cobb's 1851 Digest, p. 177; Laws 1850, Cobb's 1851 Digest, pp. 180, 181; Ga. L. 1849-50, p. 149, § 1; Ga. L. 1853-54, p. 26, § 1; Code 1863, § 2668; Code 1868, § 2664; Code 1873, § 2706; Code 1882, § 2706; Ga. L. 1893, p. 37, § 1; Civil Code 1895, § 3620; Civil Code 1910, § 4202; Ga. L. 1924, p. 83, § 1; Ga. L. 1931, p. 153, § 1; Code 1933, § 29-406; Ga. L. 1951, p. 15, § 1; Ga. L. 1983, p. 884, § 4-1.)

JUDICIAL DECISIONS

Recorded deed must be attested, acknowledged, or proven by affidavit. - To admit a deed to record, it must be a perfect deed. It must be attested by two witnesses. It must be attested or acknowledged, if executed in this state, as provided in former Civil Code 1910, § 4202 (see O.C.G.A. § 44-2-15 ), or it must be probated as provided in former Civil Code 1910, § 4205 (see O.C.G.A. § 44-2-18 ). Citizens' Bank v. Taylor, 169 Ga. 203 , 149 S.E. 861 (1929).

Deeds of realty and personalty may be acknowledged before, as well as attested by, an officer, or proven by the affidavit of a subscribing witness to prepare the deeds for record. Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).

Effect of statutory modification. - Codifiers intentionally modified preexisting law which allowed clerk of inferior court to make attestation required. Miller v. Southwestern R.R., 55 Ga. 143 (1875); Kennedy v. McCardel, 88 Ga. 454 , 14 S.E. 710 (1892) (decided under former Code 1873, § 2706, prior to amendment by Ga. L. 1924, p. 83, § 1).

For other modifications made by the codifiers, see Gress Lumber Co. v. Coody, 99 Ga. 775 , 27 S.E. 169 (1896); Anderson & Conley v. Leverette, 116 Ga. 732 , 42 S.E. 1026 (1902).

Attestation by justice of peace of another state does not meet requirements of this statute. Eaton v. Freeman, 58 Ga. 129 (1877) (see O.C.G.A. § 44-2-15 ).

Attestation by notary public of another county. - Attestation by a notary public of another county than that in which recordation is sought does not meet requirements of this statute. Allgood v. State, 87 Ga. 668 , 13 S.E. 569 (1891). See also Brockett v. American Slicing Mach. Co., 18 Ga. App. 670 , 90 S.E. 366 (1916) (see O.C.G.A. § 44-2-15 ).

Clerk of superior court can attest deed in the county wherein the clerk holds office, and not elsewhere, and the clerk cannot only witness a deed when the deed is to be recorded in that county. Anderson & Conley v. Leverette, 116 Ga. 732 , 42 S.E. 1026 (1902).

Attesting officer presumed to have jurisdiction. - In the absence of direct evidence to the contrary, a deed is presumed to have been executed where attested, and the attesting officer is presumed to have had jurisdiction. Rowe v. Spencer, 132 Ga. 426 , 64 S.E. 468 , 47 L.R.A. (n.s.) 561 (1909); Flint River Lumber Co. v. Smith, 134 Ga. 627 , 68 S.E. 436 (1910). See also Glover v. Cox, 137 Ga. 684 , 73 S.E. 1068 , 1913B Ann. Cas. 191 (1912); Cammon v. State, 20 Ga. App. 175 , 92 S.E. 957 (1917).

Lack of attestation or acknowledgment as affecting notice. - Registry of deed not attested, or not legally proved or acknowledged, is not constructive notice to a subsequent purchaser. Citizens' Bank v. Taylor, 169 Ga. 203 , 149 S.E. 861 (1929).

Bankruptcy trustee was entitled to avoid a security deed, pursuant to 11 U.S.C. § 544, because the security deed was not duly recorded as the security deed did not appear to have two signatures and, therefore, did not appear to comply with all the statutory requirements under O.C.G.A. §§ 44-2-15 and 44-14-33 . Gordon v. Ameritrust Mortg. Co. LLC (In re Nesbitt), Bankr. (Bankr. N.D. Ga. Sept. 13, 2013).

Trustee was entitled to avoid a creditor's security interest under the strong arm powers because it was not validly perfected under Georgia law; a security deed did not contain the requisite signature of an unofficial witness. One affidavit failed to meet the incorporation requirement set out in the security deed, and an attorney's affidavits did not properly show that the attorney witnessed a debtor's execution of the security deed; rather, the affidavits were merely an affirmation that the attorney's explanations preceded the debtor's execution. Gordon v. OneWest Bank FSB, (In re Blackmon), 509 Bankr. 415 (Bankr. N.D. Ga. 2014).

Alleged defect in notarization not apparent on face of document. - Trial court did not err in granting summary judgment to the corporations on the issue of whether the corporations had actual or constructive notice of fraud regarding the relatives' quitclaim deeds despite the relatives' assertions that the deeds were notarized after the deeds were signed and were notarized outside the presence of each of the relatives; even assuming the assertion was true, that defect in proper notarization was not apparent from the face of any of the deeds involved, all of which were signed, witnessed, and notarized. Bowman v. Century Funding, Ltd., 277 Ga. App. 540 , 627 S.E.2d 73 (2006).

Improper attestation of deed. - Notary was required to place the notary seal on any notarial act, including attestation of the Bank Security Deed, and failure to do so rendered the Bank Security Deed ineligible for recordation because an officer as provided in O.C.G.A. § 44-2-15 did not attest to execution of the deed in accordance with O.C.G.A. § 44-14-61 . To rule otherwise would make the requirements imposed on notary publics under O.C.G.A. § 45-17-6(a)(1) inapplicable to the common notarial act of attesting to a security deed. Kelley v. Thomasville Nat'l Bank (In re Taylor), Bankr. (Bankr. M.D. Ga. Dec. 7, 2016).

Agreement properly construed as valid deed. - Trial court did not err by determining that the original Redemption Agreement could be construed as a valid deed because O.C.G.A. §§ 44-2-15 and 44-5-30 do not provide that unless so attested, a deed is void and O.C.G.A. § 44-5-33 provides that no prescribed form is essential to the validity of a deed to lands. Bagwell v. Trammel, 297 Ga. 873 , 778 S.E.2d 173 (2015).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 99.

C.J.S. - 26A C.J.S., Deeds, §§ 68, 69.

44-2-16. Effect of acknowledgment subsequent to execution.

If subsequent to its execution a recordable instrument is acknowledged in the presence of any of the officers referred to in Code Section 44-2-15, that fact, certified on the deed by such officer, shall entitle it to be recorded.

(Laws 1785, Cobb's 1851 Digest, p. 164; Laws 1827, Cobb's 1851 Digest, pp. 171, 172; Laws 1839, Cobb's 1851 Digest, p. 177; Laws 1850, Cobb's 1851 Digest, pp. 180, 181; Ga. L. 1849-50, p. 149, § 1; Ga. L. 1853-54, p. 26, § 1; Code 1863, § 2668; Code 1868, § 2664; Code 1873, § 2706; Code 1882, § 2706; Ga. L. 1893, p. 37, § 1; Civil Code 1895, § 3620; Civil Code 1910, § 4202; Ga. L. 1924, p. 83, § 1; Ga. L. 1931, p. 153, § 1; Code 1933, § 29-408.)

JUDICIAL DECISIONS

Deeds may be acknowledged, attested, or subscribed to by witness. - Deeds of realty and personalty may be acknowledged before, as well as attested by, an officer, or proven by the affidavit of a subscribing witness to prepare the deeds for record. Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).

Deed not properly attested or acknowledged as required is ineligible for recording, and, even if recorded, does not constitute constructive notice. Higdon v. Gates, 238 Ga. 105 , 231 S.E.2d 345 (1976).

Alleged defect in notarization not apparent on face of document. - Trial court did not err in granting summary judgment to the corporations on the issue of whether the corporations had actual or constructive notice of fraud regarding the relatives' quitclaim deeds despite the relatives' assertions that the deeds were notarized after the deeds were signed and were notarized outside the presence of each of the relatives; even assuming the assertion was true, that defect in proper notarization was not apparent from the face of any of the deeds involved, all of which were signed, witnessed, and notarized. Bowman v. Century Funding, Ltd., 277 Ga. App. 540 , 627 S.E.2d 73 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 98, 99.

ALR. - Acknowledgment or oath over telephone, 12 A.L.R. 538 ; 58 A.L.R. 604 .

44-2-17. Validity of attestation by a state or county officer who appears to have no jurisdiction to attest the instrument.

  1. As used in this Code section, the term "state" means any one of the states of the United States and any territories and possessions of the United States, including the District of Columbia, Puerto Rico, and the Virgin Islands.
  2. Wherever a deed, mortgage, bond for title, or other recordable instrument appears by its caption to have been executed in one state or county and the official attesting witness appears to be an officer of a different state or of another county, which official would not have jurisdiction to witness instruments in the state or county named in the caption, the instrument, notwithstanding its caption, shall be conclusively considered and construed to have been attested by the officer in the state or county in which he has authority to act. Such deed, mortgage, bond for title, or other recordable instrument so witnessed shall be entitled to be recorded if in other respects it is so entitled.

    (Ga. L. 1918, p. 209, § 1; Ga. L. 1923, p. 111, § 1; Code 1933, § 29-407; Ga. L. 1951, p. 29, § 1; Ga. L. 1976, p. 521, § 1.)

JUDICIAL DECISIONS

Cited in Yancey Bros. Co. v. Caldwell, 93 Ga. App. 445 , 91 S.E.2d 837 (1956).

44-2-18. Recording deed upon affidavit of subscribing witness; effect of substantial compliance.

If a deed is neither attested by nor acknowledged before one of the officers named in Code Section 44-2-15, it may be recorded upon the affidavit of a subscribing witness, which affidavit shall be made before any one of the officers named in Code Section 44-2-15 and shall testify to the execution of the deed and its attestation according to law. A substantial compliance with the requirements of this Code section shall be held sufficient in the absence of all suspicion of fraud.

(Laws 1850, Cobb's 1851 Digest, p. 181; Code 1863, § 2669; Code 1868, § 2665; Code 1873, § 2707; Code 1882, § 2707; Civil Code 1895, § 3623; Civil Code 1910, § 4205; Code 1933, § 29-410.)

Law reviews. - For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).

JUDICIAL DECISIONS

Deed must be attested, acknowledged, or proven by affidavit. - To admit a deed to record, it must be a perfect deed. It must be attested by two witnesses. It must be attested or acknowledged, if executed in this state, as provided in former Civil Code 1910, § 4202 (see O.C.G.A. § 44-2-15 ), or it must be probated as provided in former Civil Code 1910, § 4205 (see O.C.G.A. § 44-2-18 ). Citizens' Bank v. Taylor, 169 Ga. 203 , 149 S.E. 861 (1929).

Deeds of realty and personalty may be acknowledged before, as well as attested by, an officer, or proven by the affidavit of a subscribing witness to prepare the deeds for record. Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).

When a recorded security deed did not contain an attestation, but included a closing attorney's affidavit, the deed was not properly attested under O.C.G.A. § 44-2-18 because, while the closing attorney's affidavit indicated that the deed was executed, the affidavit did not make reference to attestation. Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), Bankr. (Bankr. N.D. Ga. Nov. 28, 2007).

Clerk of court, with witnesses, can authenticate deed. - Clerk of the superior court alone of the county in which a deed is attested, and in which the deed must be recorded, can, by the clerk's official attestation, with one or more other witnesses, give the deed such authenticity as to admit the deed to record. Bosworth v. Davis, 26 Ga. 406 (1858).

Signature presumed genuine. - If a deed purports to be executed in the presence of, and is attested by, an officer authorized to make such attestation and another witness, and is recorded, as permitted by this statute, the signature is presumed genuine. But this may be disproved and the signature shown to be a forgery. Hansen v. Owens, 132 Ga. 648 , 64 S.E. 800 (1909) (see O.C.G.A. § 44-2-18 ).

What constitutes substantial compliance. - When a subscribing witness to a deed which is not officially attested at the time of the deed's execution appears before an officer authorized to officially attest a deed, and on oath testifies to the execution and delivery of the deed according to law, and signs an affidavit setting forth the execution, and the certificate of the officer to the affidavit states that it was "sworn to before" the officer, but omits to certify that the deed was "subscribed" in the officer's presence, the affidavit of probate is a sufficient compliance with the terms of this statute. Willie v. Hines-Yelton Lumber Co., 167 Ga. 883 , 146 S.E. 901 (1929) (see O.C.G.A. § 44-2-18 ).

Even assuming that a creditor's security deed was defective under O.C.G.A. § 44-14-33 by the deed's lack of a notary seal, an affidavit accompanying the deed constituted substantial compliance with the remedial provisions of O.C.G.A. § 44-2-18 , curing the alleged defect, and a bankruptcy trustee thus could not avoid the lien under 11 U.S.C. § 544(a). Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), 571 F.3d 1342 (11th Cir. 2009).

Affidavit signed by a notary testified to both execution and attestation of a security deed and, thus, substantially complied with the requirements of O.C.G.A. § 44-2-18 to cure any defect in attestation under O.C.G.A. §§ 44-14-33 and 44-14-61 caused by the notary's signature appearing under the term "acknowledgement." As the affidavit cured the defect, the security deed was eligible for recordation under Georgia law, and its recordation provided constructive notice to subsequent bona fide purchasers and, thus, a bankruptcy trustee could not use the trustee's strong-arm powers to avoid the security deed. Kelley v. Wells Fargo Bank, N.A. (In re Perry), 565 Bankr. 442 (Bankr. M.D. Ga. 2017).

Attestation or acknowledgment as affecting notice. - Registry of deed not attested, or not legally proved or acknowledged, is not constructive notice to a subsequent purchaser. Citizens' Bank v. Taylor, 169 Ga. 203 , 149 S.E. 861 (1929).

For historical discussion of common law and statutory provisions on attestation and acknowledgment, see Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932).

Registry of deed not attested, or not legally proved or acknowledged, is not constructive notice A.O. Blackmar Co. v. NCR, 64 Ga. App. 739 , 14 S.E.2d 153 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 98, 99.

44-2-19. Recording deed on affidavit of third person.

If the subscribing witness or witnesses are dead, are insane, have moved outside the state, or are otherwise incapacitated to make the affidavit provided for in Code Section 44-2-18, the affidavit of a third person testifying to the execution of the deed and to the genuineness of the handwriting of the subscribing witness or witnesses shall be sufficient to admit the deed to record.

(Laws 1838, Cobb's 1851 Digest, p. 176; Laws 1841, Cobb's 1851 Digest, p. 178; Ga. L. 1858, p. 53, § 1; Code 1863, § 2670; Code 1868, § 2666; Code 1873, § 2708; Code 1882, § 2708; Civil Code 1895, § 3624; Civil Code 1910, § 4206; Code 1933, § 29-411.)

JUDICIAL DECISIONS

Swearing to genuineness of handwriting of person executing not required. - Original Acts from which this statute was codified required not only that the third person therein referred to should swear to the genuineness of the handwriting of the subscribing witnesses, but the third person was required also to swear to the genuineness of the handwriting of the person executing the instrument. The omission of this latter requisite in these present provisions of a positive statute may be fairly attributable to oversight rather than to a deliberate purpose to repeal the law; however, the effect is a repeal. McVicker v. Conkle, 96 Ga. 584 , 24 S.E. 23 (1895) (see O.C.G.A. § 44-2-19 ).

Affidavit asserting witness did not sign deed raises jury issue. - When an affiant asserts plainly that, to the affiant's knowledge, the affiant's mother did not sign the deed in question, the affidavit alone raises an issue for a jury to determine as to the genuineness of the deed. Mathews v. Brown, 235 Ga. 454 , 219 S.E.2d 701 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 99.

44-2-20. Recorded affidavits relating to land as notice of facts cited therein; filing and recording.

  1. Recorded affidavits shall be notice of the facts therein recited, whether taken at the time of a conveyance of land or not, where such affidavits show:
    1. The relationship of parties or other persons to conveyances of land;
    2. The relationship of any parties to any conveyance with other parties whose names are shown in the chain of title to lands;
    3. The age or ages of any person or persons connected with the chain of title;
    4. Whether the land embraced in any conveyance or any part of such land or right therein has been in the actual possession of any party or parties connected with the chain of title;
    5. The payment of debts of an unadministered estate;
    6. The fact or date of death of any person connected with such title;
    7. Where such affidavits relate to the identity of parties whose names may be shown differently in chains of title;
    8. Where such affidavits show the ownership or adverse possession of lands or that other persons have not owned such lands nor been in possession of same; or
    9. Where such affidavits state any other fact or circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land.

      Any such affidavits may be made by any person, whether connected with the chain of title or not.

  2. Reserved.
  3. Affidavits referred to in subsection (a) of this Code section shall be filed by the clerk of the superior court of the county where the land is located and shall contain a caption referring to the current owner and to a deed or other recorded instrument in the chain of title of the affected land. The clerk of the superior court shall record such affidavits, shall enter on the deed or other recorded instrument so referred to the book and page number on which such affidavit may be recorded, and shall index same in the name of the purported owner as shown by such caption in both grantor and grantee indexes in deed records as conveyances of lands are recorded and indexed; and the clerk shall receive the same compensation therefor as for recording deeds to lands.

    (Ga. L. 1955, p. 614, §§ 1-3; Ga. L. 1982, p. 3, § 44; Ga. L. 2011, p. 99, § 77/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "Reserved" for the former provisions of subsection (b), which read: "(b) In any litigation over any of the lands referred to and described in any of the affidavits referred to in subsection (a) of this Code section in any court in this state or in any proceedings in any such court involving the title to such lands wherein the facts recited in such affidavits may be material, the affidavits or certified copies of the record thereof shall be admissible in evidence and there shall be a rebuttable presumption that the statements in said affidavits are true. The affidavits or certified copies thereof shall only be admissible as evidence in the event the parties making the affidavits are deceased; they are nonresidents of the state; their residences are unknown to the parties offering the affidavits; or they are too old, infirm, or sick to attend court."; and, in subsection (c), substituted "subsection (a)" for "subsections (a) and (b)" in the first sentence and substituted "the clerk" for "he" near the end of the last sentence. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Some Rescission Problems in Truth-In-Lending, as Viewed From Georgia," see 7 Ga. St. B.J. 315 (1971). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Statute will be strictly construed by the court. Dollar v. Thompson, 212 Ga. 831 , 96 S.E.2d 493 (1957) (see O.C.G.A. § 44-2-20 ).

Contents of affidavit. - Properly recorded affidavit "shall" contain a caption showing the information enumerated in this statute. This is made mandatory by the use of the word "shall," rather than permissive language. Dollar v. Thompson, 212 Ga. 831 , 96 S.E.2d 493 (1957) (see O.C.G.A. § 44-2-20 ).

Although affidavit gave proper statutory notice to the corporations as to the identity of the property owner, referred to the county grantor-grantee index, was properly witnessed and notarized, and contained other proper information, it did not settle the question of the identity of the property owner's heirs; thus, since a question of fact remained as to whether the affidavit afforded the corporations with actual or constructive notice as to a claim by the property owner's excluded spouse, the trial court should not have granted summary judgment to the corporations as to the claim of the one relative. Bowman v. Century Funding, Ltd., 277 Ga. App. 540 , 627 S.E.2d 73 (2006).

Affidavit cancelled. - Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407 , 667 S.E.2d 609 (2008).

Recorded affidavits not conveyances. - O.C.G.A. §§ 14-5-46 and 14-5-47 were not applicable to a national church's action to quiet title in property held by a local church because there was no deed of conveyance to the trustees of the local church; two recorded title affidavits executed by lifetime attendees of the local church, one 79 years old and the other 80, asserted there had never been a question concerning the church's right of ownership of the property, but recorded affidavits relating to land were not conveyances or a legal proceeding by which one could attack the title to realty or cure a defect in the title, O.C.G.A. § 44-2-20 . Kemp v. Neal, 288 Ga. 324 , 704 S.E.2d 175 (2010).

Affidavit not part of property's chain of title. - With respect to the issue of whether a Chapter 7 trustee was a bona fide purchaser under 11 U.S.C. § 544 of the debtor husband's interest, the fact that a corrective deed was cross-indexed with a special warranty deed did not pull the corrective deed into the property's chain of title. A bank's analogy to recordable affidavits under Georgia law was inapposite because, setting aside that the statute applied specifically to affidavits containing particular information, nothing in that statute stated that cross-indexing a recordable affidavit made the affidavit part of a property's chain of title. Bank of Am., N.A. v. Adams (In re Adams), 583 Bankr. 541 (Bankr. N.D. Ga. 2018).

Affidavit admissible only if affiant unavailable. - Affidavits shall be admissible only when the person making the affidavit is not available as a witness for stated reasons. Dollar v. Thompson, 212 Ga. 831 , 96 S.E.2d 493 (1957).

Affidavits describing relationship of parties and other facts affecting title to property. - Because the allegations in the affidavits of title simply described either the relationship of the parties or other objective facts or circumstances affecting title to the property and nearly all of those allegations were asserted or confirmed by the property owner either in the property owner's answer to the bank's complaint, the property owner's counterclaim, or the property owner's brief on appeal, the trial court did not abuse the court's discretion in effectively granting the motion to quash the subpoena for the bank's counsel and in refusing to allow the property owner to question the bank's counsel. Cronan v. JP Morgan Chase Bank, N.A., 336 Ga. App. 201 , 784 S.E.2d 57 (2016).

Cited in Parker v. Adamson, 109 Ga. App. 172 , 135 S.E.2d 487 (1964); Jones v. Van Vleck, 224 Ga. 796 , 164 S.E.2d 724 (1968); Crane v. Gaddis, 224 Ga. 804 , 164 S.E.2d 844 (1968); Minor v. Ray, 122 Ga. App. 531 , 177 S.E.2d 842 (1970).

RESEARCH REFERENCES

ALR. - Necessity of showing authority or qualification of affiant in affidavit made in behalf of corporation, 3 A.L.R. 132 .

44-2-21. Recording instrument executed out of state; attestation and acknowledgment; validity of attestation by officer who appears to have no jurisdiction to attest the instrument.

  1. To authorize the recording of a deed to realty or personalty executed outside this state, the deed must be attested by or acknowledged before:
    1. A consul or vice-consul of the United States, whose certificate under his official seal shall be evidence of the fact;
    2. A judge of a court of record in the state or county where executed, with a certificate of the clerk under the seal of such court of the genuineness of the signature of such judge;
    3. A clerk of a court of record under the seal of the court; or
    4. A notary public or justice of the peace of the county or city of the state or the state and the county, city, or country where executed, with his seal of office attached; if such notary public or justice of the peace has no seal, then his official character shall be certified by a clerk of any court of record in the county, city, or country of the residence of such notary or justice of the peace.
  2. A deed to realty must be attested by two witnesses, one of whom may be one of the officials named in subsection (a) of this Code section.
  3. Wherever any deed to realty or personalty executed outside this state appears by its caption to have been executed in one state and county and the official attesting witness appears to be an official of another state or county, which official would not have jurisdiction to witness such deed in the state and county named in the caption, the deed, notwithstanding the caption, shall be conclusively considered and construed to have been attested by the officer in the state and county in which he had authority to act.
  4. This Code section shall not apply to transactions covered by Article 9 of Title 11.

    (Ga. L. 1895, p. 73, § 1; Civil Code 1895, § 3621; Ga. L. 1900, p. 52, § 1; Civil Code 1910, § 4203; Ga. L. 1912, p. 71, § 1; Ga. L. 1924, p. 58, § 1; Code 1933, § 29-409; Ga. L. 1951, p. 261, § 1; Ga. L. 1962, p. 156, § 1; Ga. L. 1982, p. 3, § 44.)

Cross references. - General provision that no seal is required for notary's attestation of deeds, § 45-17-6 .

Law reviews. - For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Notarial seal is required for effective recording. The absence of the seal renders the recording a nullity. However, unrecorded security deeds remain valid against the persons executing the deeds. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Priority of unrecorded deed of bargain and sale. - Unrecorded deed of bargain and sale is postponed only to later bona fide purchasers for value without notice. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Admissibility of unrecorded instruments. - Unrecorded deeds or mortgages may be introduced in evidence upon sufficient proof of execution. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Fraudulent deed was facially regular and operated to release security interest. - A 2003 warranty deed that operated to release a prior lender's security interest in the property was not a forgery but was signed by someone fraudulently assuming the authority of an officer of the prior lender and was regular on the deed's face. Therefore, a subsequent lender that foreclosed on the property and purchased the property at the foreclosure sale was a bona fide purchaser for value entitled to take the property free of the prior lender's security interest. Deutsche Bank Nat'l Trust Co. v. JP Morgan Chase Bank, N.A., 307 Ga. App. 307 , 704 S.E.2d 823 (2010).

Cited in Hagan v. Hagan, 165 Ga. 364 , 141 S.E. 54 (1927); Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939); Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964).

Decisions Prior to Art. 9, T. 11

Editor's notes. - All of the following notes were taken from cases decided prior to the effective date of Art. 9, T. 11, January 1, 1964. See § 11-10-101 .

On the history of this statute, see Crummey & Hamilton v. Bentley, 114 Ga. 746 , 40 S.E. 765 (1902); Durrence v. Northern Nat'l Bank, 117 Ga. 385 , 43 S.E. 726 (1903); McTyre v. Stearns, 142 Ga. 850 , 83 S.E. 955 (1914) (see O.C.G.A. § 44-2-21 ).

Former Civil Code 1895, §§ 5060 and 5062 (see O.C.G.A. § 9-10-113 ) did not repeal former Civil Code 1895, § 3621 (see O.C.G.A. § 44-2-21 ). Simpson v. Wicker, 120 Ga. 418 , 47 S.E. 965 , 1 Ann. Cas. 542 (1904).

Purpose. - Requirement of this statute is merely a provision for admission of paper to record. Balchin v. Jones, 10 Ga. App. 434 , 73 S.E. 613 (1912) (see O.C.G.A. § 44-2-21 ).

"Attestation" and "subscribed" construed. - Attestation is witnessing actual execution of paper, and subscribing one's name as witness to fact. Gilliam v. Burgess, 169 Ga. 705 , 151 S.E. 652 (1930).

What is intended as signature constitutes signing. - Exactly what constitutes a signing has never been reduced to a judicial formula. The principle is that whatever the testator or grantor is shown to have intended as the grantor's signature is a valid signing, no matter how imperfect, unfinished, fantastical, illegible, or even false the separate characters or symbols the grantor used might be when critically judged. Gilliam v. Burgess, 169 Ga. 705 , 151 S.E. 652 (1930).

Consul's attestation must be done at consulate. - It is clear that it was not intended that a consul could act in relation to the matter of attesting deeds at any other place than that at which the laws of the United States authorize the consul to perform such acts. Therefore, if a consul of the United States attests a deed at any place other than the consulate, such attestation would not be sufficient to authorize the record of the deed. McCandless v. Yorkshire Guarantee & Sec. Corp., 101 Ga. 180 , 28 S.E. 663 (1897). See also, Long v. Powell, 120 Ga. 621 , 48 S.E. 185 (1904).

Certificate evidences fact of execution and attestation of deed. - Words in subsection (a)(1) would seem to contemplate a certificate in every instance as evidence not merely of the fact that the person purporting to be the attesting officer is such an officer, but of the whole complex fact of execution and attestation of the deed, including the identity and official character of the attesting witness. McTyre v. Stearns, 142 Ga. 850 , 83 S.E. 955 (1914) (see O.C.G.A. § 44-2-21 ).

Acknowledgement when deed executed out of state. - When a deed to realty in this state is executed out of the state, a judge of a court of record of the venue of the execution may take an acknowledgment thereof. Cunningham v. Barker, 109 Ga. 613 , 35 S.E. 53 (1900).

Clerk's certificate under court's seal is prima facie evidence of judicial authority. Ford v. Nesmith, 117 Ga. 210 , 43 S.E. 483 (1903).

For illustration of procedure of acknowledgement before clerk, see Ford v. Nesmith, 117 Ga. 210 , 43 S.E. 483 (1903).

Effect of lack of seal or certificate on out-of-state bill of sale. - Bill of sale executed out of this state, probated before a notary public, is not entitled to record in Georgia when the seal of the notary is not attached, and when the official character of the notary is not certified by a clerk of the court of record in the county or city of the residence of the notary. Southeastern Equip. Co. v. Peoples Ins. & Fin. Co., 105 Ga. App. 539 , 125 S.E.2d 114 (1962).

Clerk's certificate referring to power under which notary holds appointment not required. - This statute does not require the certificate of the clerk to contain any statement with reference to the power under which the notary holds the notary's appointment. Durrence v. Northern Nat'l Bank, 117 Ga. 385 , 43 S.E. 726 (1903) (see O.C.G.A. § 44-2-21 ).

Requirement of two witnesses not satisfied. - Attestation of deed to realty solely by notary does not satisfy requirement of this statute for two witnesses. Kimbrell v. Thomas, 139 Ga. 146 , 76 S.E. 1024 (1912) (see O.C.G.A. § 44-2-21 ).

Presumption that deed executed within attesting officer's jurisdiction. - Every presumption which the law may indulge may be invoked in favor of the inference that the deed was executed within the attesting official's jurisdiction since the deed does not bear evidence to the contrary. Glover v. Cox, 137 Ga. 684 , 73 S.E. 1068 , 1913B Ann. Cas. 191 (1912). See also In re Williams, 224 F. 984 (S.D. Ga. 1915).

OPINIONS OF THE ATTORNEY GENERAL

Word "seal" is reflective of standard mode of notarization at time of statute's original enactment. 1975 Op. Att'y Gen. No. U75-53 (see O.C.G.A. § 44-2-21 ).

Rubber stamp qualifies as "seal". - Deeds executed in states allowing notaries public to use a rubber stamp in indelible ink, in lieu of a raised seal, qualify for recordation in Georgia. 1975 Op. Att'y Gen. No. U75-53.

44-2-22. Legal effect of good record title for 40 years.

A prima-facie case shall be made out in actions respecting title to land upon showing good record title for a period of 40 years, and it shall not be necessary under such circumstances to prove title to the original grant from the state.

(Ga. L. 1953, Jan.-Feb. Sess., p. 63, § 1.)

Law reviews. - For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For note advocating land registration similar to the Torrens system and criticizing the 1952 amendments to Art. 2 of this chapter, as well as view that that article is solely a means to clear title, see 6 Mercer L. Rev. 320 (1955).

JUDICIAL DECISIONS

Section constitutes major change in rules of evidence in cases involving title to land. Shippen v. Cloer, 213 Ga. 172 , 97 S.E.2d 563 (1957) (see O.C.G.A. § 44-2-22 ).

Section not sole means of proving ownership. - In an ejectment action by a landowner against a sign company, the landowner was not required to show record title for 40 years to prove ownership of the property; O.C.G.A. § 44-2-22 does not provide the sole means by which a party may prove ownership of land, but merely supplies an evidentiary shortcut to proving ownership of land when two parties make adverse claims to the land. Outdoor Sys. v. Woodson, 221 Ga. App. 901 , 473 S.E.2d 204 (1996).

Proving ownership prior to passage of statute. - Prior to enactment of this statute, when a plaintiff in ejectment relied upon a record or paper title to prove ownership, it was necessary, in order to make out a prima facie case, to prove a regular chain of title from the state, or from some grantor in possession, or from a common source from which the grantor and the defendant claimed. Shippen v. Cloer, 213 Ga. 172 , 97 S.E.2d 563 (1957) (see O.C.G.A. § 44-2-22 ).

Effect of recital in deed of source of title. - Although a recital in a deed that the parties making the deed were heirs at law of a former owner is not evidence of the fact recited, except as against parties to the deed and their privies, it may be sufficient to show prima facie good title in the grantee. Herrington v. Church of Lord Jesus Christ, 222 Ga. 542 , 150 S.E.2d 805 (1966).

Defenses to ejectment action survive section's enactment. - Defendant in ejectment action may assert defenses which the defendant could assert prior to section's enactment; after the plaintiff has established plaintiff's prima facie case by showing a good record title for 40 years, the burden of proceeding is upon the defendant, who must introduce evidence to rebut the plaintiff's prima facie case; otherwise the plaintiff's evidence will demand a verdict in plaintiff's favor. Shippen v. Cloer, 213 Ga. 172 , 97 S.E.2d 563 (1957) (see O.C.G.A. § 44-2-22 ).

Statute is merely a rule of evidence under which the plaintiff in ejectment can make a prima facie case; the statute did not change the fundamental rules governing the ownership of property, and the statute does not deprive the defendant in ejectment of any defenses which the defendant could have asserted prior to the enactment of this statute. Costello v. Styles, 227 Ga. 650 , 182 S.E.2d 427 (1971) (see O.C.G.A. § 44-2-22 ).

Legal title in third person. - Defendant, except when some special relationship between defendant and the plaintiff forbids it, may defeat a recovery by showing, beyond all controversy, legal title in a third person, without connecting defendant with that title, provided the title so shown was subsisted at the date of the commencement of the action and was paramount to the plaintiff's. Shippen v. Cloer, 213 Ga. 172 , 97 S.E.2d 563 (1957).

Ripening of prescriptive title in another. - When the plaintiff made out a prima facie case when the plaintiff introduced in evidence the plaintiff's chain of title, such a title, like any other title to land, may be lost by the subsequent ripening of a prescriptive title thereto in another. Hearn v. Leverette, 213 Ga. 286 , 99 S.E.2d 147 (1957).

When both parties in action apparently have good title, legal title determined by other evidence. - When the plaintiff and the defendant in an ejectment action each appear to have good record title for 40 years from separate sources, other evidence must be resorted to in order to determine the owner of the legal title. Costello v. Styles, 227 Ga. 650 , 182 S.E.2d 427 (1971).

Deed referencing a plat with certain description established boundary. - In a boundary dispute, pursuant to O.C.G.A. § 44-2-22 , a landowner established a prima facie case upon showing good record title for a period of 40 years: the landowner's 1956 deed referenced a survey plat that described the boundary with certain metes and bounds and measurements, while the neighbors' 1936 deed provided insufficient means to determine the boundary. Mathews v. Cloud, 294 Ga. 415 , 754 S.E.2d 70 (2014).

Ejectment petition properly denied. - When an original property owner, in the owner's ejectment petition, did not present any testimony or documentary evidence that the grantor had title to the property purportedly conveyed by the quitclaim deed, the owner failed to make out a prima-facie case based on good record title for a period of 40 years. Brooks v. Green, 277 Ga. 722 , 594 S.E.2d 629 (2004).

Cited in Finney v. Green, 211 Ga. 143 , 84 S.E.2d 28 (1954); Seal v. Aldredge, 100 Ga. App. 458 , 111 S.E.2d 769 (1959); John Doe v. Roe, 234 Ga. 127 , 214 S.E.2d 880 (1975).

44-2-23. When deed serves as evidence; effect of affidavit alleging forgery.

Reserved. Repealed by Ga. L. 2011, p. 99, § 78 /HB 24, effective January 1, 2013.

Editor's notes. - This Code section was based on Laws 1812, Cobb's 1851 Digest, p. 167; Laws 1827, Cobb's 1851 Digest, p. 172; Laws 1841, Cobb's 1851 Digest, p. 178; Ga. L. 1855-56, p. 143, § 1; Code 1863, § 2674; Code 1868, § 2670; Code 1873, § 2712; Code 1882, § 2712; Civil Code 1895, § 3628; Civil Code 1910, § 4210; Code 1933, § 29-415. For present provisions, see § 24-8-803 .

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

44-2-24. Withdrawal of affidavit of forgery upon loss of deed by affiant.

Where an affidavit of forgery has been filed to the plaintiff's deed, and the deed has been turned over to the defendant or his counsel in order to procure evidence upon the issue of forgery, and such deed is destroyed or lost by the defendant or his counsel or for any cause is not returned to the plaintiff, the judge trying the case shall strike the affidavit of forgery and withdraw the issue from the jury until the deed is produced. The same rule shall apply when the plaintiff files an affidavit of forgery as to the deed of the defendant.

(Ga. L. 1887, p. 60, §§ 1, 2; Civil Code 1895, § 3629; Civil Code 1910, § 4211; Code 1933, § 29-416.)

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 164, 167, 168.

ALR. - Forgery as affecting registration under Torrens Act, 68 A.L.R. 357 .

Forged deed or bond for title as constituting color of title, 68 A.L.R.2d 452.

Procuring signature by fraud as forgery, 11 A.L.R.3d 1074.

44-2-25. Recording techniques; copies of plats.

All decrees, deeds, mortgages, or other instruments affecting the title to land shall be recorded by the clerk of superior court in such a manner so as to provide a permanent record of such instruments. It shall be lawful to make a copy or copies of any plats, blueprints, or other copies of plats that are already of record in the clerk's office. These copies shall serve all purposes and shall be as authentic as the originals.

(Ga. L. 1929, p. 321, § 1; Code 1933, § 29-420; Ga. L. 1950, p. 413, § 1; Ga. L. 2016, p. 193, § 4/HB 1004.)

The 2016 amendment, effective January 1, 2017, substituted the present provisions of this Code section for the former provisions, which read: "All decrees, deeds, mortgages, or other instruments affecting the title to land shall be recorded by the clerk of the superior court by the use of printing, typewriting, handwriting in ink, photostating, or photographing, which record shall be clear, legible, and permanent. The record may be made by any one or more of such methods. It shall be lawful to make a photostatic copy or copies of any plats, blueprints, or other copies of plats that are already of record in the clerk's office. These copies or photostatic copies thereof shall serve all purposes and shall be as authentic as the originals."

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 270.

C.J.S. - 26A C.J.S., Deeds, §§ 161, 162. 76 C.J.S., Records, § 3 et seq.

ALR. - Fraudulent misrepresentation or concealment by a contracting party concerning title to property or other subjects which are matters of public record, 33 A.L.R. 853 ; 56 A.L.R. 1217 .

Duty of vendor as to abstract of title, 52 A.L.R. 1460 .

44-2-26. Recording of plat or copy of plat - When and where authorized; duty of clerk.

The owner of real property or of any interest therein or any holder of a lien thereon may file a plat of the property in the office of the clerk of superior court of the county in which the property or any part thereof is located. It shall be the duty of the clerk to record and index any plat that conforms with Code Section 15-6-67.

(Ga. L. 1937, p. 746, § 1; Ga. L. 2012, p. 173, § 1-34/HB 665; Ga. L. 2016, p. 193, § 5/HB 1004.)

The 2012 amendment, effective July 1, 2012, substituted "digital" for "photostatic" twice in this Code section, and added "that conforms with Code Section 15-6-67" at the end of the last sentence.

The 2016 amendment, effective January 1, 2017, in the first sentence, substituted "may file a plat of the property in the office of the clerk of superior court" for "may have a plat of the property or a blueprint, tracing, digital copy, or other copy of a plat of the property recorded and indexed in the office of the clerk of the superior court", and deleted "or any blueprint, tracing, digital copy, or other copy of the plat" following "any plat" in the second sentence.

JUDICIAL DECISIONS

Unofficial plat is admissible in evidence if proven to be correct. Mickle v. Moore, 188 Ga. 444 , 4 S.E.2d 217 (1939).

Description in lease prevails over that in plat. - When a lease describes the premises by metes and bounds, such a description will prevail over that of an attached sketch or plat when they differ in describing the premises. Duke v. Wilder, 212 Ga. 26 , 90 S.E.2d 12 (1955).

Cited in Conyers v. Fulton County, 117 Ga. App. 649 , 161 S.E.2d 347 (1968).

OPINIONS OF THE ATTORNEY GENERAL

Plats reduced in size. - Clerks of superior courts may accept for recording plats which have been reduced in size if the plats comply with the requirements of O.C.G.A. § 44-2-26 . 1989 Op. Att'y Gen. No. U89-4.

Photocopies of plats. - Clerks of superior courts are not authorized under O.C.G.A. §§ 15-6-67 to 15-6-69 to record photocopies of plats, although such a recording will not affect or invalidate any legal description or legal instrument based on such plat. 1989 Op. Att'y Gen. No. U89-4.

44-2-27. Recording of plat - When deemed recorded.

When any plat is filed by the clerk of superior court, such filing shall be deemed a recording of the plat.

(Ga. L. 1937, p. 746, § 2; Ga. L. 2016, p. 193, § 6/HB 1004.)

The 2016 amendment, effective January 1, 2017, substituted the present provisions of this Code section for the former provisions, which read: "When any plat or any blueprint, tracing, photostatic copy, or other copy of the plat is securely pasted or fastened in the book provided by the clerk for that purpose, such pasting or fastening shall be deemed a recording of the plat."

44-2-28. Recording of plat or copy of plat - Incorporation by reference.

When any deed, mortgage, or other instrument conveying an interest in or creating a lien on real property refers to the boundaries, metes, courses, or distances of the real estate delineated or shown on any plat of the property or on any blueprint, tracing, photostatic or digital copy, or other copy of the plat which has been recorded as authorized in Code Section 44-2-26 and when the deed, mortgage, or other instrument states the office, book, and page of recordation of the plat or of the blueprint, tracing, photostatic or digital copy, or other copy of the plat, the reference shall be equivalent to setting forth in the deed, mortgage, or other instrument the boundaries, metes, courses, or distances of the real estate as may be delineated or shown on the plat or on the blueprint, tracing, photostatic or digital copy, or other copy thereof.

(Ga. L. 1937, p. 746, § 3; Ga. L. 1982, p. 3, § 44; Ga. L. 2016, p. 193, § 7/HB 1004.)

The 2016 amendment, effective January 1, 2017, inserted "or digital" throughout this Code section.

JUDICIAL DECISIONS

Contract referring to plat must identify tract sold. - Contract to sell part of a larger tract shown on the plat referred to must identify the part to be sold. McMichael Realty & Ins. Agency, Inc. v. Tysinger, 155 Ga. App. 131 , 270 S.E.2d 88 (1980).

Cited in Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734 , 252 S.E.2d 662 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Plat may be referred to in conveyance to aid in description of the property conveyed; such a plat need not be recorded to be utilized to aid in description; it is required that the plat be identified as the one referred to, and evidence of the plat's correctness shown; if these basic requirements are met, the court may even correct errors and deficiencies in the plat to develop a description of the property conveyed. 1973 Op. Att'y Gen. No. U73-19.

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 38 et seq, 50.

C.J.S. - 26A C.J.S., Deeds, § 53 et seq.

ALR. - Rights as between grantees in severalty of lots or parts of same tract, where actual measurements vary from those given in deeds or indicated on the map or plat, 97 A.L.R. 1227 .

Conveyance of lot with reference to map or plat as giving purchaser rights in indicated streets, alleys, or areas not abutting his lot, 7 A.L.R.2d 607.

44-2-29. Recording of plat or copy of plat - Ratification of record made prior to statutory authorization; effect of incorporation by reference of plat prior to authorization.

Any plats or any blueprints, tracings, photostatic copies, or other copies of plats recorded prior to March 29, 1937, in the manner described in Code Section 44-2-26 are declared to have been duly recorded; and the reference in any deed, mortgage, or other instrument executed prior to March 29, 1937, to the boundaries, metes, courses, or distances of the real estate delineated or shown on any plat or on any blueprint, tracing, photostatic copy, or other copy of a plat recorded prior to March 29, 1937, in the manner described in Code Section 44-2-26 shall have the same effect as if the boundaries, metes, courses, or distances of the real estate were specifically set forth in the deed, mortgage, or other instrument.

(Ga. L. 1937, p. 746, § 5.)

JUDICIAL DECISIONS

Cited in Conyers v. Fulton County, 117 Ga. App. 649 , 161 S.E.2d 347 (1968).

RESEARCH REFERENCES

C.J.S. - 26A C.J.S., Deeds, § 54 et seq.

44-2-30. Filing and recording of notice of settlement.

  1. Any party, or his or her legal representative, to a settlement which will convey legal or equitable title to real estate or any interest therein or create any lien thereon by way of a deed to secure debt, mortgage, or other instrument may file an instrument to be designated a "notice of settlement" with the clerk of the superior court of the county in which the real estate is situated. The notice of settlement shall be filed, permanently recorded, and indexed by the clerk of the superior court in the same manner as real estate records of the county. The clerk of the superior court shall transmit such information regarding notices of settlement as required by the Georgia Superior Court Clerks' Cooperative Authority for inclusion in the state-wide uniform automated information system for real and personal property records, as provided for by Code Sections 15-6-97 and 15-6-98. The clerk of the superior court shall charge a fee for the filing and recording of the notice of settlement as is required for filing other instruments pertaining to real estate as set forth in division (f)(1)(A)(i) of Code Section 15-6-77.
  2. The notice of settlement provided for in subsection (a) of this Code section shall be signed by said party or legal representative and shall set forth the names of the parties to the settlement and a description of the real estate. If the notice is executed by any one other than an attorney at law of this state, the execution shall be acknowledged or proved in the manner provided by law for the acknowledgment or proof of deeds.
  3. After the filing of a notice of settlement, any person claiming title to, an interest in, or a lien upon the real estate described in the notice through any party in the notice shall be deemed to have acquired said title, interest, or lien with knowledge of the anticipated settlement and shall be subject to the terms, conditions, and provisions of the deed or mortgage between the parties filed within the period provided by subsection (e) of this Code section.
  4. The form of the notice of settlement shall be substantially as follows:

    This form must be executed by a party or legal representative. If the notice is executed by anyone other than an attorney at law in Georgia, it must be executed and acknowledged or proved in the same manner as a deed.

    NOTICE is hereby given of a contract, agreement, and mortgage and commitment between the parties hereto.

  5. The notice of settlement shall be effective for 30 days from the date of filing; provided, however, that the notice of settlement shall be allowed to be renewed by a second filing for one additional 30 day period. Any lien filed during said 30 days shall attach to the premises described in the notice immediately upon the expiration of the 30 days, provided that the premises have not been conveyed and notwithstanding the filing of a subsequent notice of settlement. (Code 1981, § 44-2-30 , enacted by Ga. L. 2006, p. 649, § 1/HB 1282; Ga. L. 2007, p. 47, § 44/SB 103.)

"NOTICE OF REAL ESTATE SETTLEMENT

Name(s) and address(es) __________________ __________________ __________________ __________________ Seller(s) -and- Name(s) and address(es) __________________ __________________ Notice __________________ of __________________ Settlement Buyer(s) -and- Name(s) and address(es) __________________ __________________ __________________ __________________ Mortgagee(s)

The lands to be affected are described as follows:

All that certain tract or parcel of lands and premises situate lying and being in the ______________ of ______________, County of ______________ and State of Georgia, commonly known as ______________ and more particularly described as follows: Tax map reference County of ______________ Block No. ____ Lot No. ____ Block ____ Prepared by: ____________________________ Name ____________________________ ____________________________ Address ____________________________ Telephone Number"

PART 2 U NIFORM REAL PROPERTY ELECTRONIC RECORDING

Effective date. - This part became effective May 5, 2009.

Cross references. - Electronic records and signatures, § 10-12-1 et seq.

Filing documents by electronic means, § 15-10-53 .

44-2-35. Short title.

This part shall be known and may be cited as the "Uniform Real Property Electronic Recording Act."

(Code 1981, § 44-2-35 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-36. Definitions.

As used in this part, the term:

  1. "Authority" means the Georgia Superior Court Clerks' Cooperative Authority established pursuant to Code Section 15-6-94.
  2. "Document" means information that is:
    1. Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and
    2. Eligible to be recorded in the land records maintained by the clerk of superior court.
  3. "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  4. "Electronic document" means a document that is received by the clerk of superior court in an electronic form.
  5. "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.
  6. "Paper document" means a document that is received by the clerk of superior court that is not electronic.
  7. "Person" means an individual, corporation, business trust, estate, trust partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  8. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. (Code 1981, § 44-2-36 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-37. Electronic documents treated as original; electronic signatures acceptable.

  1. An electronic document prepared and filed in compliance with this part shall satisfy any requirement as a condition for recording that a document be an original, on paper or another tangible medium, or in writing.
  2. An electronic signature shall satisfy any requirement as a condition for recording that a document be signed.
  3. A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included by other applicable law, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature. (Code 1981, § 44-2-37 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-38. Role of clerk of court.

A clerk of superior court:

  1. Who implements any of the functions listed in this Code section shall do so in compliance with standards established by the authority;
  2. May receive, index, store, archive, and transmit electronic documents;
  3. May provide for access to, and search and retrieval of, documents and information by electronic means;
  4. Who accepts electronic documents for recording shall continue to accept for filing paper documents as authorized by state law and shall record both electronic documents and paper documents in the same manner as provided for by law;
  5. For archival purposes, may convert into electronic form paper documents accepted for recording;
  6. May convert into electronic form historical documents recorded on paper;
  7. May accept electronically any fee or other moneys that the clerk of superior court is authorized to collect; and
  8. May agree with other officials of a state or a political subdivision thereof, or of the United States, on procedures or processes to electronically facilitate satisfaction of prior approvals and conditions precedent to recording and on the electronic payment of statutorily required fees and other moneys. (Code 1981, § 44-2-38 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-39. Adoption of rules and regulations; standardization.

  1. The authority shall adopt rules and regulations and any standardized forms necessary to implement this part.
  2. To promote uniform standards and practices and compatibility of technology used within offices of clerks of superior court in this state and recording offices in other states that have enacted or may enact provisions substantially similar to those contained within this part, the authority shall consider when adopting, amending, and repealing its rules and regulations and any standardized forms:
    1. Standards and practices of other jurisdictions;
    2. The most recent standards promulgated by national standard-setting bodies, such as the Property Records Industry Association;
    3. The views of interested persons and governmental officials and entities;
    4. The needs of counties of varying size, population, and resources; and
    5. Standards that ensure that electronic documents are accurate, authentic, adequately preserved, and resistant to tampering. (Code 1981, § 44-2-39 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-39.1. Promotion of uniformity.

In applying and construing this part, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact substantially similar provisions.

(Code 1981, § 44-2-39.1 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-39.2. Construction with federal law.

The provisions of this part modify, limit, and supersede the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but shall not modify, limit, or supersede Section 101(c) of that federal act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that federal act, 15 U.S.C. Section 7003(b).

(Code 1981, § 44-2-39.2 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

ARTICLE 2 LAND REGISTRATION

Law reviews. - For note advocating land registration similar to the Torrens system and criticizing the 1952 amendments to The Land Registration Act as well as view that the Act is solely a means to clear title, see 6 Mercer L. Rev. 320 (1955).

JUDICIAL DECISIONS

Constitutionality. - Requirements for land registration is not violative of the constitutional provision which declares that no law or ordinance shall pass which refers to more than one subject matter. Nor would the fact that the penal provision is unconstitutional render the entire Act void. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921).

Rules of law applicable. - In proving such title as will entitle an applicant to registration and a decree in the applicant's favor, the same rules of law apply as in suits for the recovery of possession of land by ejectment or statutory complaint for land. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

PART 1 I N GENERAL

JUDICIAL DECISIONS

Purpose of chapter. - Ultimate goal of any complaint brought under the Georgia Land Registration Law is to determine conclusively the question of title. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Persons not affected. - Upon a proper construction of the Georgia Land Registration Law, its provisions do not apply to a person who is not made a party to proceedings instituted thereunder, and as to whom there is no compliance with the statute as to service or notice. Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

Evidence required to register title. - Applicant seeking to register applicant's title may rely upon what is shown in the preliminary report without introducing in evidence the conveyances specified therein. Asbury v. McCall, 192 Ga. 102 , 14 S.E.2d 715 (1941), later appeal, 202 Ga. 154 , 42 S.E.2d 370 (1947).

Where plat admissible in evidence. - In proceeding under the Georgia Registration Law, plat is admissible in evidence where one who made the plat testifies to the plat's correctness, even if one testifies that in making the plat one examined the deeds of record and numerous other plats some of which were not in evidence, and the plat did not show on the plat's face the angles at which the lines were run. Henrietta Egleston Mem. Hosp. v. Groover, 202 Ga. 327 , 43 S.E.2d 246 (1947).

Cited in Cole v. Ogg, 180 Ga. 343 , 179 S.E. 116 (1935); Burgess v. Simmons, 191 Ga. 322 , 12 S.E.2d 323 (1940); Beasley v. Burt, 201 Ga. 144 , 39 S.E.2d 51 (1946); Manning v. Simmons, 207 Ga. 304 , 61 S.E.2d 150 (1950); James v. Florida Realty & Fin. Corp., 208 Ga. 652 , 68 S.E.2d 601 (1952); Hicks v. Simpson, 229 Ga. 214 , 190 S.E.2d 73 (1972).

OPINIONS OF THE ATTORNEY GENERAL

Effect of unrecorded written leases and contracts for oil leases. - When oil companies or operators secure from the true owner of land a written contract of lease, such a contract is binding between the parties and cannot be set aside by the owner at will, even if the lease was not registered. Should a company obtain a written lease from the true owner of land and fail to record the lease, as deeds and mortgages are recorded, and should the true owner sell the land to a third party who does not know of the lease, the third party purchasing the land would obtain a good title to all the interest in the land including mineral rights. 1945-47 Op. Att'y Gen. p. 397.

44-2-40. Short title.

This article shall be known and may be cited as "The Land Registration Law."

(Ga. L. 1917, p. 108, § 1; Code 1933, § 60-101.)

Law reviews. - For article, "Tracing Georgia's English Common Law Equity Jurisprudential Roots: Quia Timet," see 14 The Journal of Southern Legal History 135 (2006).

JUDICIAL DECISIONS

Cited in Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

44-2-41. Definitions.

As used in this article, the term:

  1. "Clerk" means the clerk of the superior court of the county where the land is located and includes his lawful deputies and any person lawfully acting as clerk under the general laws or under this article.
  2. "Court" means the superior court of the county where the land is located.
  3. "Involuntary transaction" means all transmissions of registered land or of any interest therein other than those included in paragraph (6) of this Code section and all other rights or claims, judicial proceedings, liens, charges, or encumbrances not created directly by contract with the registered owner but arising by operation of law or of equitable principles or because of dower, the exercise of the right of eminent domain, levies on delinquent taxes, or any other like matters affecting registered land or any interest therein.
  4. "Judge," "judge of the court," "judge of the superior court," "judge of the superior court of the county where the land is located" or words of similar purport mean any judge presiding in the superior court of the county where the land is located. While it is intended that as a usual matter the judge of the superior court of each circuit shall be the judge who shall act upon and sit in the various matters arising in that circuit with which the judges of such courts are charged under this article, as to such matters any judge of the superior court shall have jurisdiction to perform the functions of judge under this article. In the event the judge of the superior court of the circuit in which the transaction or matter arises is disqualified, absent from the circuit, ill, dead, or from any other cause cannot act in the matter, it shall be the duty of any other judge of the superior court to whom the matter is presented to act in the matter to the same extent as if the same arose in one of the counties of his own circuit. In any matter arising under this article, upon the request of the judge of the superior court of the circuit in which it arose, any judge of the superior court may act upon it as if it had arisen in his own circuit.
  5. "Registered land" means any estate or interest in land which shall have been registered under this article.
  6. "Voluntary transaction" means all contractual and other voluntary acts or dealings, except by will, by any registered owner of any estate or interest in land, with reference to such estate or interest and any right of homestead or exemption therein.

    (Ga. L. 1917, p. 108, § 3; Code 1933, § 60-102; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Cited in Parham v. Kennedy, 60 Ga. App. 52 , 2 S.E.2d 765 (1939).

44-2-42. Performance of clerk's and sheriff's duties by deputies; liability.

The duties required of the clerk and the sheriff by this article may be performed through their lawful deputies; but the clerk or the sheriff, as the case may be, shall be responsible for the acts of such deputies.

(Ga. L. 1917, p. 108, § 83; Code 1933, § 60-415; Ga. L. 1982, p. 3, § 44.)

44-2-43. Fraud, forgery, and theft in connection with registration of title to land; penalty.

Any person who: (1) fraudulently obtains or attempts to obtain a decree of registration of title to any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent document in the course of any proceedings with regard to registered lands or any interest therein; (3) makes or utters any forged instrument of transfer or instrument of mortgage or any other paper, writing, or document used in connection with any of the proceedings required for the registration of lands or the notation of entries upon the register of titles; (4) steals or fraudulently conceals any owner's certificate, creditor's certificate, or other certificate of title provided for under this article; (5) fraudulently alters, changes, or mutilates any writing, instrument, document, record, registration, or register provided for under this article; (6) makes any false oath or affidavit with respect to any matter or thing provided for in this article; or (7) makes or knowingly uses any counterfeit of any certificate provided for by this article shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than ten years.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9901; Ga. L. 1982, p. 3, § 44.)

Cross references. - Forgery and fraudulent practices generally, Ch. 9, T. 16.

JUDICIAL DECISIONS

No private right of action. - Because no state court would find that a borrower's complaint stated a claim against a non-diverse foreclosure administrator, whether under O.C.G.A. § 44-2-43 (because the statute did not provide a private right of action) or common law, the administrator was properly dismissed and its citizenship properly disregarded under the doctrine of fraudulent joinder for purposes of diversity jurisdiction and removal. Restivo v. Bank of Am. Corp., F.3d (11th Cir. July 8, 2015)(Unpublished).

Cited in Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921).

RESEARCH REFERENCES

ALR. - Forged deed or bond for title as constituting color of title, 68 A.L.R.2d 452.

44-2-44. Fraudulent acts by office of clerk personnel; penalties.

Any clerk, deputy clerk, special clerk, or other person performing the duties of the office of clerk who: (1) fraudulently enters a decree of registration without authority of the court; (2) fraudulently registers any title; (3) fraudulently makes any notation or entry upon the title register; (4) fraudulently issues any certificate of title, creditor's certificate, or other instrument provided for by this article; or (5) knowingly, intentionally, and fraudulently does any act of omission or commission under color of his office in relation to the matters provided for by this article shall be guilty of a felony and shall be removed from office and be permanently disqualified from holding any public office and shall be punished by imprisonment for not less than one nor more than ten years.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9902; Ga. L. 1982, p. 3, § 44.)

Cross references. - Forgery and fraudulent practices generally, Ch. 9, T. 16.

JUDICIAL DECISIONS

Cited in DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349 , 751 S.E.2d 827 (2013).

44-2-45. Fraud or false entries by sheriffs and deputies; penalties.

Any sheriff, deputy sheriff, or other person performing the duties of the office of sheriff who knowingly and fraudulently makes any false entry or return in connection with any matter arising under this article or who fraudulently conspires with any person or persons to defraud any other person or persons through this article shall be guilty of a felony and shall be removed from office and be permanently disqualified from holding any public office in this state and shall be punished by imprisonment for not less than one nor more than ten years.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9904.)

Cross references. - Forgery and fraudulent practices generally, Ch. 9, T. 16.

44-2-46. Fraudulent acts and malpractice of examiners; penalty.

Any examiner of title who knowingly and fraudulently makes any false report to the court as to any matter relating to any title which is sought to be registered under this article, as to any matter affecting the same, or as to any other matter referred to him under this article or who fraudulently conspires with any other person or persons to use this article in defrauding any other person or persons, firm, or corporation or who is guilty of any willful malpractice in his office shall be guilty of a felony and be punished by imprisonment for not less than one nor more than ten years.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9903.)

Cross references. - Forgery and fraudulent practices generally, Ch. 9, T. 16.

44-2-47. Reduction of felonies under this article to misdemeanors.

The felonies provided for in this article may, in the matter of punishment, be reduced to misdemeanors in the manner prescribed in Code Section 17-10-5.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9905.)

PART 2 P ROCEEDINGS TO REGISTER

JUDICIAL DECISIONS

Cited in Johnson v. Henderson, 221 Ga. 327 , 144 S.E.2d 358 (1965).

RESEARCH REFERENCES

ALR. - Constitutionality of provisions of Torrens Law as to prima facie effect of the examiner's reports, 19 A.L.R. 62 .

44-2-60. Jurisdiction of superior court over matters in this article.

For the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered as prescribed by this article, the superior court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon.

(Ga. L. 1917, p. 108, § 2; Code 1933, § 60-201.)

Cross references. - Judges who may preside in the superior court of the county where the land is located, § 44-2-41 .

JUDICIAL DECISIONS

Dispossessory action held not transferable. - In a dispossessory action filed in state court, there was no evidence of the lack of a landlord-tenant relationship, and no evidence justifying a challenge to the ownership of the land so as to require transfer of the case to the superior court. Bread of Life Baptist Church v. Price, 194 Ga. App. 693 , 392 S.E.2d 15 (1990).

Cited in Setlock v. Setlock, 286 Ga. 384 , 688 S.E.2d 346 (2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 4.

44-2-61. Proceedings to be in rem; operation of decree.

The proceedings under any petition for the registration of land and all proceedings in the court in relation to registered land shall be proceedings in rem against the land; and the decree of the court shall operate directly on the land and shall vest and establish title thereto in accordance with this article upon all persons who are parties to said proceedings, whether by name or under the general designation of "whom it may concern."

(Ga. L. 1917, p. 108, § 4; Ga. L. 1931, p. 190, § 1; Code 1933, § 60-202; Ga. L. 1939, p. 341, § 1.)

JUDICIAL DECISIONS

Rules of law applicable. - In proving such title as will entitle an applicant to registration and a decree in the applicant's favor, the same rules of law apply as in suits for the recovery of possession of land by ejectment or statutory complaint for land. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

Action not substitute for ejectment. - Relief in ejectment is not coextensive with that which may be had under the Georgia Land Registration Act. In ejectment, title can never be settled as against the world. Conversely, relief may be had in ejectment which cannot be had under the act, including possession of the premises and judgment for mesne profits. The Georgia Land Registration Act is not a substitute for ejectment or for the statutory action for land. A proceeding to register the title may be brought by a person in possession against others not in possession, contrary to the rule in ejectment. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921).

Applicant judged on strength of own application. - Every applicant for benefits under the Land Registration Act must stand on the strength of the applicant's own application, and not upon the weakness of the applicant's adversary's title. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

Conclusiveness of judgment on adverse claimants. - As stated in Ga. L. 1917, p. 108, § 4 (see O.C.G.A. § 44-2-61 ), actions under the Georgia Registration Law were proceedings in rem; and judgments rendered therein, decreeing registration of title in the names of the applicants, were conclusive upon all adverse claimants, except in cases of fraud or forgery, in which cases such claimants can file appropriate proceedings to set aside decrees and certificates of registration. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923).

Cited in Hancock v. Lizella Fruit Farm, 184 Ga. 73 , 190 S.E. 362 (1937); Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 1, 5, 7, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 1, 2, 22.

ALR. - Necessity of actual possession to give title by adverse possession under invalid tax title, 22 A.L.R. 550 .

44-2-62. Procedure as to actions for registration; persons under disability.

Action for registration of title shall be begun by a petition to the court by the person, persons, or corporation claiming, singly or collectively, to own or to have the power of appointing or disposing of an estate in fee simple in any land whether or not subject to liens, encumbrances, or lesser estate. Minors and other persons under disability may bring and defend actions by a guardian, a guardian ad litem, a next friend, or a trustee, as the case may be.

(Ga. L. 1917, p. 108, § 5; Code 1933, § 60-203.)

JUDICIAL DECISIONS

Equity not applicable. - Proceeding under the Georgia Land Registration Act is purely statutory, not equitable. Bird v. South Ga. Indus. Co., 150 Ga. 420 , 104 S.E. 232 (1920).

Party with undivided half interest may register such interest. - Fact that one of the defendants claiming title by adverse possession owned an undivided half interest in one of four tracts involved, and the other defendants owned the other half interest, would not defeat the defendants' right to registration of such respective interests, under the terms of the Land Registration Act. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

Cited in Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939); Burgess v. Simmons, 207 Ga. 291 , 61 S.E.2d 410 (1950); Turner v. Kelley, 212 Ga. 175 , 91 S.E.2d 356 (1956).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10 et seq.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 2 et seq.

44-2-63. Persons claiming less than fee; establishing title without registration.

Any person possessing lands and claiming an interest or estate less than the fee therein may have his title to such lands established under this article without the registration and transfer features provided in this article.

(Ga. L. 1917, p. 108, § 6; Code 1933, § 60-204.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 5, 18.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 2, 5.

44-2-64. Petition - Verification; contents; description of land; surveys; amendments.

The petition and amendments thereto shall be signed and sworn to by each petitioner, or, in the case of a corporation, by some officer thereof, or, in the case of a person under disability, by the person filing the petition. It shall contain a full description of the land, its valuation, and its last assessment for county taxation; shall show when, how, and from whom it was acquired, a description of the title by which he claims the land, and an abstract of title; shall state whether or not it is occupied; and shall give an account of all known liens, interests, and claims, adverse or otherwise, vested or contingent. Full names and addresses, if known, of all persons who may have any interest in the land, including adjoining owners and occupants, shall be given. The description of the land given in the petition shall be in terms which will identify the same fully and which will tend to describe the same as permanently as is reasonably practicable under all the circumstances. If the land is in a portion of the state in which land is divided into land districts and lot numbers by state survey, the petition shall state the number of the land district and the lot number or numbers in which the tract is located. Before passing a decree upon any petition for registration, the judge, on his own motion or upon the recommendation of the examiner, may require a fuller and more adequate description or one tending more permanently to identify the tract in question to be included in the petition by amendment; and if, in the discretion of the court, it shall be necessary, the judge may for that purpose require a survey of the premises to be made and the boundaries marked by permanent monuments. The acreage or other superficial contents of the tract shall be stated with approximate accuracy; and where reasonably practicable the court may require the metes and bounds to be stated.

(Ga. L. 1917, p. 108, § 7; Code 1933, § 60-207.)

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007).

JUDICIAL DECISIONS

Applicant's burden of proof. - It is necessary for the applicant for registration to allege and prove good title in the applicant. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923); Smith v. Board of Educ., 168 Ga. 755 , 149 S.E. 136 (1929).

When the applicant for registration does not show that the applicant has a good title to the land, the applicant's petition should be denied. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

Effect of judgment on landowner not named as party. - Land registration judgment, if granted, would not be binding upon an adjoining landowner who was not named and served. State v. Bruce, 231 Ga. 783 , 204 S.E.2d 106 (1974).

Incomplete petition insufficient to support findings. - When the petition and abstract failed to include certain deeds or to claim registration thereunder, and several were executed during the pendency of the suit, the findings of the examiner and the decrees of the court could not properly be based on such instruments. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

Sufficiency of property description in deed. - Test as to sufficiency of the description of property contained in a deed is whether or not the description discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that the land's identification is practicable. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

Deed wherein the description of the property sought to be conveyed is so vague and indefinite as to afford no means of identifying any particular tract of land is inoperative either as a conveyance of title or as color of title. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

If the description is so indefinite that no particular tract of land is pointed out by the instrument itself, the description must be held so defective as to prevent the instrument from operating as a conveyance of title. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

Petition which describes the tract by bounding land owners, by acreage, by courses and distances, by reference to back deeds and, finally, by reference to two plats, meets the requirements of law. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Imperfect description not invalid if land identifiable by extrinsic data. - Deed is not invalid when the description is imperfect, if the instrument refers to extrinsic data by means of which the land may be identified. Likewise an ambiguous descriptive clause may be aided by aliunde evidence. But such imperfect or ambiguous descriptions must not be confounded with a description utterly lacking in definiteness. A deed which fails to describe any particular land or to furnish any key to the confines of the land purporting to be conveyed is void. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

Cited in Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936); Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 19.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 13, 14.

44-2-65. Petition - Inclusion of separate parcels in one proceeding; individual registration of separate parts of one tract.

Any number of separate parcels of land which are claimed by the petitioner under the same general claim of title and are located in the same county may be included in the same proceeding. Any one tract may be established in several parts, each of which shall be clearly and accurately described and registered separately.

(Ga. L. 1917, p. 108, § 8; Code 1933, § 60-208.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 19.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 13, 14.

44-2-66. Petition - Persons included as defendants.

The petition shall include as defendants all persons whom it shows to have any interest, equity, or claim upon said land or upon any interest in the land whether such claim is vested or contingent and whether or not the claim is adverse to the petitioner; and the petition shall also include as defendants all other persons "whom it may concern."

(Ga. L. 1917, p. 108, § 9; Code 1933, § 60-205.)

JUDICIAL DECISIONS

Party neither named nor served not bound by decree. - When there was a known claimant of the land which the plaintiff sought to have registered who was in possession thereof at the time the proceedings were instituted, this section required that the claimant be named as a party defendant; since the claimant was not named and served as such, the claimant was not bound by the decree rendered in such proceedings. Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

Cited in Turner v. Kelley, 212 Ga. 175 , 91 S.E.2d 356 (1956).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 18.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 9.

44-2-67. Issuance and service of process or summons; service by publication; notice to nonresidents; request for petition; guardians ad litem.

    1. Upon the petition being filed in the office of the clerk of the superior court in the county where the land is located, the clerk shall issue a process directed to the sheriffs of this state and their lawful deputies requiring all of the defendants named in the petition and all other persons "whom it may concern" to show cause before the court on a named day not less than 40 nor more than 50 days from the date thereof why the prayers of the petition should not be granted and why the court should not proceed to judgment in such cause. The clerk shall make the necessary copies of the petition and process for service.
    2. A copy of the petition and process shall be served in accordance with Code Section 9-11-4 upon each party who is named as a defendant in the original petition and who is a resident of this state, provided that such service shall be within 30 days from the time of issuance of process. Second originals and copies may be issued and served in the same manner provided for in Code Section 9-11-4.
    3. The clerk of the superior court shall also cause to be published for four separate weeks in the newspaper in which the advertisements of sheriff's sales in the county are advertised a notice addressed "to whom it may concern" and to each person named in the petition as a defendant who resides outside of the state or whose place of residence is unknown. The notice shall give notice of the filing of the petition by the petitioner and a description of the land which the petitioner seeks to register and shall warn such defendants to show cause why the petition should not be granted before the court on the date named in the process.
    4. Wherever the petition discloses or it otherwise becomes disclosed to the court in the progress of the proceedings that any nonresident is interested, such nonresident shall also be notified by the clerk of the court mailing to him a copy of the petition and process by registered or certified mail or statutory overnight delivery to his post office address, if known, as the same may be disclosed to the court through the petition or other proceedings in the case.
    5. The judge of the court may grant additional time for service or return of the process and may provide for service in cases not provided for in this subsection wherever the exigencies of justice may so require.
  1. Notwithstanding subsection (a) of this Code section, instead of the clerk's issuing process and making copies of the petition and process and instead of service of the petition and process being made, it shall be sufficient for the clerk to prepare and cause to be issued and served as provided in subsection (a) of this Code section a summons substantially in the following language:

    However, if the petitioner so requests and if he delivers copies of the petition to the clerk, the clerk shall attach a copy of the process to the petition and cause the same to be served as provided in subsection (a) of this Code section. Wherever in this article a requirement is made for serving on any person a copy of the petition and process, it shall be sufficient in lieu thereof to serve a copy of the summons as provided for in this subsection.

  2. Notwithstanding subsection (b) of this Code section, if any defendant named in the original petition shall through his counsel request in writing a copy of the petition from the applicant, the applicant shall provide the defendant with a copy of the petition, with all exhibits attached, within five days of the request. The time within which a defendant must file an answer or cross-action to the application shall be suspended from the date of his request for a copy of the petition until the date he receives the copy of the petition, with all exhibits attached, from the applicant.
  3. Guardians ad litem shall be appointed for infants and other persons under disability in proceedings under this article, as provided for in Title 9.

    (Ga. L. 1917, p. 108, § 10; Code 1933, § 60-209; Ga. L. 1943, p. 326, § 1; Ga. L. 1964, p. 170, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44; Ga. L. 2000, p. 1589, § 3.)

"To (here list the defendants shown in the petition): Please take notice that (here name the plaintiff or plaintiffs) has filed in said court a petition seeking to register, under the provisions of the Land Registration Law, the following described lands (describe them). You are notified to show cause to the contrary, if any you have, before said court on or before the ______ day of ________________________, ________. ______________ Clerk"

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Service of the petition on resident defendants is required as in ordinary actions at law. Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

Cited in Hudson v. Varn Turpentine & Cattle Co., 176 Ga. 538 , 168 S.E. 581 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10 et seq.

44-2-68. Appointment of resident agent for service on nonresident petitioner.

A nonresident petitioner shall appoint a resident agent or attorney upon whom process and notice may be served.

(Ga. L. 1917, p. 108, § 7; Code 1933, § 60-210.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10 et seq.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 11.

44-2-69. Service upon state, county, or municipality.

If the petition discloses that it involves the determination of any public right or interest of this state or of any county or municipality thereof, the process or notice, in order to affect the state, the county, or the municipality, shall be served:

  1. In the case of the state, upon the Attorney General;
  2. In the case of a county, upon the judge of the probate court or, if the judge of the probate court is disqualified, upon the clerk of the superior court; or
  3. In the case of a municipality, upon the mayor of the municipality or, if there is no mayor or if the mayor is disqualified, upon a majority of the members of the council or other governing body of the municipality.

    (Ga. L. 1917, p. 108, § 11; Code 1933, § 60-211.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10 et seq.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 9, 11.

44-2-70. Waiver or acknowledgment of service.

Any person entitled to notice or service of process under this article may waive such notice or service by a written acknowledgment of service or written waiver of service entered upon the petition or entitled in the cause and signed by such person in the presence of the judge of the superior court, the clerk of the superior court of the county, the examiner, or any other person or official authorized by law to administer oaths, to take acknowledgments, or to act as a notary public or official witness. His signature shall be attested by such officer.

(Ga. L. 1917, p. 108, § 12; Code 1933, § 60-212; Ga. L. 1945, p. 140, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 1, 11, 22.

44-2-71. Conclusive effect of evidence of service of process and notice; liability of officers for false returns or failure to publish or mail notice.

Before passing the decree authorizing the registration of land, the court shall be satisfied that the publication of notice and service of process required by this article have been made. After judgment, the entry of service by the sheriff or his deputy shall be conclusive evidence and shall not be subject to traverse nor shall any acknowledgment of service be subject to traverse. The recital of the service of process and of the giving and publishing of notices contained in the decree or final judgment in the case shall be conclusive evidence that such service, publication, and notice have been legally given; provided, however, that nothing in this Code section shall prevent any aggrieved person from having a right of action against any sheriff who shall make a false return of service, or against any clerk or examiner who shall falsely attest a waiver or acknowledgment of service, or against any clerk who shall fail to publish the notice or to mail the notice required by this article.

(Ga. L. 1917, p. 108, § 13; Code 1933, § 60-213.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 1, 11, 22.

44-2-72. Posting notice on land and buildings; ascertainment of and notice to occupants; return to court; seizure and custody of the land and attachment of jurisdiction.

  1. A notice similar to the notice published as provided in Code Section 44-2-67 shall be delivered by the clerk to the sheriff of the county or to one of his lawful deputies; and the sheriff or his lawful deputy shall, within 30 days from the date the petition is filed, post the same upon the land in some conspicuous place. If there is more than one tract of land, the clerk shall furnish enough notices to the sheriff or his deputy to allow the posting of a notice upon each tract of land included in the petition.
  2. If the land contains one or more dwelling houses or one or more buildings used as a place of business, the sheriff shall conspicuously post upon each house or building the notice provided for in subsection (a) of this Code section; and he shall state this in his return to the court.
  3. Within 30 days from the date the petition is filed, the sheriff shall go upon the land and ascertain the identities of the occupants of the land. He shall make an official return to the court stating the name and post office address of each person over 14 years of age actually occupying the premises.
  4. After receiving the sheriff's return, the clerk shall send a copy of the petition and process by registered or certified mail or statutory overnight delivery to each person occupying the land or he may require the sheriff or his deputy to serve a copy of the petition and process upon such persons. The clerk shall make an entry if he has mailed the notices or, if the sheriff has made the service of process, the sheriff shall make the return.
  5. After the sheriff or his deputy has entered upon the land, posted the notices provided for in subsections (a) and (b) of this Code section, and made his return to the court as provided in subsection (c) of this Code section, the land shall be deemed to have been seized and brought into the custody of the court for the purposes of this article; and the court's jurisdiction in rem and quasi in rem shall attach thereto for purposes of land registration proceedings under this article.
  6. The clerk shall attach to each owner's certificate of title a certified copy of the sheriff's return.

    (Ga. L. 1917, p. 108, § 14; Code 1933, § 60-214; Ga. L. 1943, p. 326, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Cited in Hudson v. Varn Turpentine & Cattle Co., 176 Ga. 538 , 168 S.E. 581 (1933).

RESEARCH REFERENCES

ALR. - What is "public place" within requirements as to posting of notices, 90 A.L.R.2d 1210.

44-2-73. Effect of notice; appearances or pleadings as waiver of service, notice, and defects.

The notices provided for and to be given under this article shall stand as personal service of process and shall be conclusive and binding on all persons so notified and on all the world. Appearances or pleadings in the case shall constitute a waiver of process and service and of notice and of any defect therein.

(Ga. L. 1917, p. 108, § 14; Code 1933, § 60-214.)

44-2-74. Service on other persons found by examiner to be entitled to notice.

If the report of the examiner discloses that persons other than those who have been notified are entitled to notice, a copy of the petition shall be served upon such persons in the same manner as other persons named as defendants in the petition are required to be served by this article; and, in addition to the copy of the petition, there shall be attached a notice from the clerk directed to such person informing him that he shall appear and show cause against the judgment being rendered in the case, if any, within ten days from the date of the service of the notice. However, nothing in this Code section shall be construed to require the giving of additional notice by publication other than the published notice provided for in this article to nonresidents or persons who, by reason of absence from the state or by reason of their whereabouts being unknown, cannot be found and served with process.

(Ga. L. 1917, p. 108, § 17; Code 1933, § 60-215.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 11.

44-2-75. Additional notice; judge's discretion.

Wherever notice is required by this article and no provision is made as to how notice shall be given or wherever, in the discretion of the judge, additional notice to that provided for in this article should be given to any particular person or persons or to the public generally, the judge may order such notice to be given and may provide the manner in which it shall be given.

(Ga. L. 1917, p. 108, § 72; Code 1933, § 60-216.)

44-2-76. Who may file objections or cross-action to petition.

Any person, whether notified or not, may become a party to the proceeding for the purpose of filing objections to the granting of the relief prayed for in the petition or any part thereof either by filing in court an answer showing that he claims some interest in the premises and stating the grounds of his objection or by filing a cross-action praying that the title to the land or some interest therein be decreed to be in him and be registered accordingly.

(Ga. L. 1917, p. 108, § 18; Code 1933, § 60-206.)

JUDICIAL DECISIONS

Objectors having no interest in the land are without authority to contest the right of the applicant to a decree of registration of title in the applicant's name. Asbury v. McCall, 202 Ga. 154 , 42 S.E.2d 370 (1947); McCook v. Council, 202 Ga. 313 , 43 S.E.2d 317 (1947).

Finding which is unexcepted to is binding. - When the final report of the examiner in a land registration case recited that the evidence did not disclose that the objectors had any interest in the land, and such finding was unexcepted to, the report became binding upon all parties to the litigation. Asbury v. McCall, 202 Ga. 154 , 42 S.E.2d 370 (1947); McCook v. Council, 202 Ga. 313 , 43 S.E.2d 317 (1947).

Finding against one contestant does not entitle other to decree. - Finding against one of two contestants, each seeking the benefits of The Land Registration Act and a decree of title, does not entitle the other to a decree in that person's favor. Thomasson v. Coleman, 176 Ga. 375 , 167 S.E. 879 (1933).

Cited in Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 18.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 9.

44-2-77. Survey of land upon order of judge or examiner; notice to adjoining landowners; protest; procedure for trying issue.

While the cause is pending before the examiner of titles or at any time before final decree, the judge, or the examiner with the approval of the judge, may require the land to be surveyed by some competent surveyor and may order durable bounds to be set and a plat thereof to be filed among the papers of the suit. Before such survey is made, all adjoining landowners shall be given at least five days' notice. The petitioner or any adjoining owner dissatisfied with the survey may file a protest with the court within ten days from the time the plat is filed; and thereupon an issue shall be made up and tried as in case of protest to the return of land processioners.

(Ga. L. 1917, p. 108, § 22; Code 1933, § 60-217.)

JUDICIAL DECISIONS

Survey by one other than court-appointed surveyor permitted. - When no survey such as provided for in this statute was ordered, but the petitioner introduced in evidence the testimony and survey of the petitioner's own surveyor, who testified as to the location of the land lines, corners, and landmarks of the property, the evidence offered was competent and not subject to the objection that the petitioner's survey did not comply with this statute. Harris v. Ernest L. Miller, Co., 213 Ga. 748 , 101 S.E.2d 715 (1958) (see O.C.G.A. § 44-2-77 ).

Although this statute calls for the use of a registered surveyor, this is directory and a court does not commit error when the court approves the services of a registered engineer, provided the court determines the engineer is equally well qualified to perform the services required of a surveyor. Smith v. Bruce, 241 Ga. 133 , 244 S.E.2d 559 (1978).

Cited in Union Bag-Camp Paper Corp. v. Coffee County Hunting & Fishing Club, 216 Ga. 44 , 114 S.E.2d 511 (1960).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 19.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 14, 15.

44-2-78. Dismissal without prejudice.

If the petitioner's title is not and cannot be made proper for registration, the petition may, at the discretion of the court or the petitioner, be dismissed without prejudice on terms to be determined by the court.

(Ga. L. 1917, p. 108, § 23; Code 1933, § 60-218.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 12.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 13.

44-2-79. Amendment or severance of petitions or other pleadings; power of court or examiner to require additional facts.

Amendments to petitions or other pleadings, including joinder, substitution, or discontinuance of parties, the severance of pleadings, and the omission or severance of any portion or parcel of the land may be ordered or allowed by the court at any time before the final decree upon terms that may be just and reasonable. The court may require facts to be stated in the petition in addition to those prescribed by this article. The examiner shall have the same powers subject to review by exception to his reports.

(Ga. L. 1917, p. 108, § 24; Code 1933, § 60-219.)

JUDICIAL DECISIONS

Cited in Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 10, 12.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 9, 11.

44-2-80. Treatment of land pending registration; appearance of person acquiring interest in land pending registration.

Pending registration, the land described in any petition may be dealt with as if no petition had been filed; but any person who shall acquire any interest in or claim against any such land shall at once appear as a petitioner or answer as a party defendant in the pleadings for registration, and such interest or claim shall be subject to the decree of the court.

(Ga. L. 1917, p. 108, § 25; Code 1933, § 60-220.)

Cross references. - Filing notice of lis pendens, § 44-14-610 .

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 18.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 9.

44-2-81. No default judgment or decree.

No decree shall be rendered by default and without the necessary facts being shown.

(Ga. L. 1917, p. 108, § 21; Code 1933, § 60-221.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 20.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 16.

44-2-82. Entry of judgment and decree; inclusion of limitations and encumbrances; decree in favor of cross-action; separate decree for each parcel.

After the record has been perfected and settled, the judge of the superior court shall proceed to decide the case; and if, upon consideration of such record, the title shall be found in the petitioner, the judge shall enter a decree to that effect ascertaining all limitations, liens, encumbrances, and the like and declaring the land entitled to registration according to his findings. Such decree shall be entered upon the minutes of the superior court and shall become a part of the records thereof. If, upon consideration of the record, the judge finds that the petitioner is not entitled to a decree declaring the land entitled to registration, he shall enter judgment accordingly. If any person shall have filed a cross-action praying for the title to be found in him, the judge may enter a decree to that effect in like manner ascertaining and declaring all limitations, liens, and the like and declaring the land entitled to registration according to his findings. If separate parcels shall be involved, the court shall render a separate decree as to each parcel; and the same shall be done where the petitioner has divided a tract into separately described parcels and has accurately described each parcel for separate registration.

(Ga. L. 1917, p. 108, § 26; Code 1933, § 60-222.)

JUDICIAL DECISIONS

Constitutionality. - This statute is not unconstitutional on the ground that the statute confers upon the judge of the superior court the right to render judgment without the verdict of a jury in a civil case other than one founded on an unconditional contract in writing where no issuable defense is filed on oath. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921) (see O.C.G.A. § 44-2-82 ).

Trial judge to inspect record and enter decree. - This statute is not intended as a modification of the other sections as to the method of ascertaining the facts, but on proper construction simply means that the trial judge shall inspect the record after the record has been "perfected and settled" by ascertainment of the facts as otherwise provided, and shall thereupon enter a decree in accordance with such record. It does not dispense with findings of fact by an examiner, as contemplated by other provisions of law, although when there is an error apparent upon the face of the examiner's report "wholly irrespective of the evidence" on which it is based, the court should correct that error by the court's judgment. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939) (see O.C.G.A. § 44-2-82 ).

Findings of fact required. - Under The Land Registration Act, there can be no registration without findings of fact in favor of the party whose title is registered. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Cited in Harris v. Ernest L. Miller Co., 213 Ga. 748 , 101 S.E.2d 715 (1958).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 20, 22.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 16.

44-2-83. Conclusiveness of decree; effect of disability on conclusiveness; recourse of persons under a disability against assurance fund.

Every decree rendered as provided in this article shall bind the land and bar all persons claiming title thereto or interest therein, shall quiet the title thereto, and shall be forever binding and conclusive upon and against all persons, including this state, whether mentioned by name in the order of publication or included under the general description "whom it may concern." It shall not be an exception to the conclusiveness of the decree that the person is a minor, is incompetent by reason of mental illness or intellectual disability, or is under any other disability; but said person may have an action against the assurance fund provided for in Part 6 of this article.

(Ga. L. 1917, p. 108, § 27; Code 1933, § 60-223; Ga. L. 2015, p. 385, § 4-8/HB 252.)

The 2015 amendment, effective July 1, 2015, in the last sentence, substituted "intellectual disability" for "retardation" and inserted "other".

Cross references. - Proceedings quia timet and proceedings to remove clouds upon titles, § 23-3-40 et seq.

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

JUDICIAL DECISIONS

Cited in Dyal v. Watson, 174 Ga. 330 , 162 S.E. 682 (1932); Hudson v. Varn Turpentine & Cattle Co., 176 Ga. 538 , 168 S.E. 581 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 20, 22.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 16.

44-2-84. Review by Court of Appeals.

All judgments and decrees of the superior court or the judge thereof which are rendered under this article shall be subject to review by the Court of Appeals.

(Ga. L. 1917, p. 108, § 82; Code 1933, § 60-224; Ga. L. 2016, p. 883, § 3-9/HB 927.)

The 2016 amendment, effective January 1, 2017, at the end of this Code section, substituted "Court of Appeals" for "Supreme Court". See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides, in part, that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews. - For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 205 (2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 23.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 17.

PART 3 E XAMINERS

RESEARCH REFERENCES

ALR. - Constitutionality of provisions of Torrens Law as to prima facie effect of the examiner's reports, 19 A.L.R. 62 .

44-2-100. Appointment and qualification of examiners and special examiners; filing order of appointment and affidavit.

The judge of the superior court of each judicial circuit shall appoint at least one auditor, who shall be known as the examiner, who shall discharge the duties provided for the examiner in this article but whose relation and accountability to the court shall be that of an auditor in the general practice existing in this state. The judge shall appoint as many examiners in the circuit as the public convenience may require in connection with the carrying out of this article; and the judge may, in any case, appoint a special examiner. Examiners shall hold office at the pleasure of the judge and shall be removable at any time with or without cause. Each examiner must be a competent attorney at law, be of good standing in his profession, and have at least three years' experience in the practice of law. Each examiner shall take and file in the office of the clerk of the superior court of the county of his residence, along with the order of his appointment, an oath or affidavit substantially in the form prescribed in Code Section 44-2-228.

(Ga. L. 1917, p. 108, § 15; Code 1933, § 60-301.)

Cross references. - Auditors generally, Ch. 7, T. 9.

JUDICIAL DECISIONS

Cited in Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 2.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 1, 22, 43.

44-2-101. Referral of case to examiner; preliminary report; contents; time of filing.

Upon the filing of a petition as provided in this article, the clerk shall at once notify the judge who shall refer the action to one of the general examiners or to a special examiner. It shall then become the duty of the examiner to make up a preliminary report containing an abstract of the title to the land from public records and all other evidence of a trustworthy nature that can reasonably be obtained by the examiner, which abstract shall contain:

  1. Extracts from the records and other matters referred to therein which are complete enough to enable the court to decide the questions involved;
  2. A statement of the facts relating to the possession of the lands; and
  3. The names and addresses, so far as the examiner is able to ascertain, of all persons interested in the land as well as all adjoining owners showing their several apparent or possible interests and indicating upon whom and in what manner process should be served or notices given in accordance with this article.

    The preliminary report of the examiner shall be filed in the office of the clerk of the superior court on or before the return day of the court as stated in the process unless the time for filing the report is extended by the court.

    (Ga. L. 1917, p. 108, § 16; Code 1933, § 60-302; Ga. L. 1982, p. 3, § 44; Ga. L. 2011, p. 99, § 79/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "the examiner" for "him" near the end of the introductory paragraph and deleted the former last sentence of this Code section, which read: "The report shall be prima-facie evidence of the contents thereof." See Editor's notes for applicability.

Editor's notes. - Ga. L. 2011, p. 99, § 101, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Constitutionality. - This statute is not violative of the due process clauses of the state and federal constitutions in that the preliminary examination by the examiner is ex parte and before the parties adversely interested are brought into the proceeding, or in that the preliminary report of the examiner is declared to be prima facie evidence of the contents thereof, such report not being binding upon the court or conclusive upon the parties adversely interested in the proceeding. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921); Saunders v. Staten, 152 Ga. 142 , 108 S.E. 797 (1921) (see O.C.G.A. § 44-2-101 ).

Purpose of the preliminary report is to furnish to the court and to the parties any information likely to affect the title or the possession, and so that any person interested in or likely to be interested in the result of the suit may be notified. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921).

Reliance upon preliminary report. - An applicant seeking to register the applicant's title under The Land Registration Act may rely upon what was shown in the examiner's preliminary report, without introducing in evidence the conveyances specified therein. McCall v. Asbury, 190 Ga. 493 , 9 S.E.2d 765 (1940).

Unless the words "the said report shall be prima facie evidence of the contents thereof," are read out of this statute, it must be held that when the report is put in evidence the party offering the report has offered sufficient proof of the deeds therein referred to. McCall v. Asbury, 190 Ga. 493 , 9 S.E.2d 765 (1940) (see O.C.G.A. § 44-2-101 ).

Adoption of report without transcript. - Examiner's brief of the evidence in a title registration proceeding fully complied with O.C.G.A. § 44-2-103(b) , and a trial court did not err in adopting the report without first reviewing a transcript; if a stenographic report did exist, the registrant never made timely request that the report be filed or direct the trial court's attention to evidence appearing in the report. A A OK, Ltd. v. City of Atlanta, 280 Ga. 764 , 632 S.E.2d 633 (2006).

Burden of proof of deed shifts when affidavit of forgery filed. - In order to cast on the applicant for registration the burden of proving the genuineness of a deed shown in the preliminary report of the examiner, an affidavit of forgery must be filed, pursuant to former Code 1933, § 29-415 (see O.C.G.A. § 44-2-23 ); and written objections, though verified, which aver that certain deeds were forgeries did not amount to an affidavit of forgery. McCall v. Asbury, 190 Ga. 493 , 9 S.E.2d 765 (1940).

De novo investigation and report required upon sustaining exceptions to original report. - On sustaining the exceptions to an examiner's report the case should be referred again to the same or a different examiner for a de novo investigation and report. Such is the procedure adopted by reference in The Land Registration Act; for, under the practice applying generally in cases referred to an auditor, where exceptions of fact are sustained, so as to leave no basis for a judgment or decree, the issues must ordinarily be again referred to an auditor, or submitted to a jury. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Cited in Asbury v. McCall, 192 Ga. 102 , 14 S.E.2d 715 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 8, 14, 15.

44-2-102. Hearing; final report; delay of hearing to add new parties; notice.

As soon as practicable after the return day stated in the process, the examiner shall proceed to hear evidence and make up his final report to the court. However, if it has developed from the preliminary report filed by him that persons other than those named as defendants in the original petition are entitled to service or notice, the hearing shall not begin until after ten days from the date of the service of notice upon such persons. The examiner shall give notice of the time and place of the hearing to the petitioner and to persons who have filed any pleading in the case.

(Ga. L. 1917, p. 108, § 19; Code 1933, § 60-303.)

JUDICIAL DECISIONS

Cited in Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939); Asbury v. McCall, 192 Ga. 102 , 14 S.E.2d 715 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 8, 14, 15.

44-2-103. Examiner's powers; contents, filing, and notice of examiner's report; right to jury trial, new trial, and appeal; recommitment to examiner after trial or reversal on appeal.

  1. At the time and place set for the hearing, the examiner shall, in like manner as other auditors, proceed with similar powers as to the compelling of the attendance of witnesses, the production of books and papers, and adjournment and recessing to hear all lawful evidence submitted. In addition he may make such independent examination of the title as he may deem necessary.
  2. Within 15 days after the hearing has been concluded unless for good cause the time is extended by the judge, the examiner shall file with the clerk a report of his conclusions of law and of fact setting forth the state of the title; any liens or encumbrances thereon, by whom held, and the amounts due thereon; the abstract of title to the land; any other information affecting the validity of the title; and a brief or a stenographic report of the evidence taken by him. He shall mail notice of the filing of his report to each of the parties who have appeared in the case. Any of the parties to the proceeding may file exceptions to the conclusions of law or of fact or to the general findings of the examiner within 20 days after such report is filed. The clerk shall thereupon notify the judge that the record is ready for his determination.
  3. If the petitioner or any contestant of the petitioner's right shall demand a trial by jury upon any issue of fact arising upon exceptions to the examiner's report, the court shall cause the same to be referred to a jury either at the term of court which may then be in session or at the next term of the court or at any succeeding term of the court to which the case may be continued for good and lawful reasons. It shall be the duty of the judge to expedite the hearing of the case and not to continue it unless for good cause shown or upon the consent of all parties at interest. The issue or issues of fact shall be tried before the jury, in the event jury trial is requested, upon the evidence reported by the examiner except in cases where, under law, evidence other than that reported by an auditor may be submitted to the jury on exceptions to an auditor's report. Furthermore, in cases where the examiner has reported to the court findings of fact based on his personal examination, either party may introduce additional testimony as to such facts, provided that the party will make it appear under oath that he has not been fully heard and given full opportunity to present testimony on the same matter before the examiner. The verdict of the jury upon the questions of fact shall operate to the same extent as in the case of exceptions to an auditor's report in an ordinary civil action.
  4. In all matters not otherwise provided for, the procedure upon the examiner's report and the exceptions thereto shall be in accordance with procedure prevailing as to the auditor's reports and exceptions thereto.
  5. The right to grant a new trial upon any issue submitted to a jury and the right of appeal shall be as provided for in Code Sections 5-6-37 through 5-6-44, 5-6-48, and 5-6-49.
  6. The judge may refer or recommit the record to the examiner in like manner as auditor's reports may be recommitted or he or she may on his or her own motion recommit it to the same or any other examiner for further information and report. When an exception or exceptions to the examiner's report have been sustained by the court or by verdict on the trial of an issue of fact or when the appellate court reverses the judgment of the trial court, it shall not be necessary for the trial court to recommit the case to an examiner, but the judge shall proceed to enter a decree in accordance with the law and the facts as thus established and appearing from the record; provided, however, that if the judge, in his or her discretion, is of the opinion that it is in the interests of truth and justice that a recommitment to an examiner should be made, the judge may, upon the motion of any party or on his or her own motion, order a recommitment of the whole case or any part thereof or for the taking of additional testimony upon any matter which the court deems necessary to the rendition of a true and correct decree.

    (Ga. L. 1917, p. 108, § 20; Code 1933, § 60-304; Ga. L. 1943, p. 326, § 1; Ga. L. 1992, p. 6, § 44; Ga. L. 2016, p. 883, § 3-10/HB 927.)

The 2016 amendment, effective January 1, 2017, in subsection (e), deleted "to the Supreme Court" following "right of appeal"; and, in subsection (f), in the first sentence, substituted "he or she may on his or her" for "he may on his", and, in the second sentence, substituted "When" for "Where", substituted "when the appellate court" for "where the Supreme Court", substituted "the judge may" for "he may" and inserted "or her" following "his". See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides, in part, that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 205 (2016).

JUDICIAL DECISIONS

Constitutionality. - Provisions of this statute relating to the trial by jury, upon demand, of issues of fact arising upon exceptions to the examiner's report, which is to be taken as prima facie true, and restricting the hearing to the evidence reported by the examiner, except as otherwise provided in this statute, are not unconstitutional limitations of the right of trial by jury. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921) (see O.C.G.A. § 44-2-103 ).

This statute is not violative of the due process clauses of the state and federal constitutions, upon the ground that the statute provides for the independent examination of the title by the examiner and for the submission by the examiner of a final report based upon such findings, which shall be taken as prima facie true, such report not being conclusive upon the parties nor binding upon the court until after trial by jury upon exceptions of fact filed thereto. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921) (see O.C.G.A. § 44-2-103 ).

Equity procedure applicable. - While an action under The Land Registration Act is not a case in equity, but is a purely statutory proceeding, the statute expressly makes the procedure in equity applicable to exceptions to an examiner's report in such case. Bird v. South Ga. Indus. Co., 150 Ga. 420 , 104 S.E. 232 (1920); Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Procedure on the report of the examiner under the Georgia Land Registration Act is the same as that on the report of an auditor in an equity case. Bird v. South Ga. Indus. Co., 150 Ga. 420 , 104 S.E. 232 (1920); McCaw v. Nelson, 168 Ga. 202 , 147 S.E. 364 (1929).

Examiner's report binding on parties if not excepted to. - An examiner's report, when not excepted to within 20 days as required by this statute, becomes binding upon all parties to that proceeding and the parties are not allowed to later challenge the report. Miller v. Turner, 209 Ga. 255 , 71 S.E.2d 517 (1952) (see O.C.G.A. § 44-2-103 ).

Sole function of the jury, as expressed in The Land Registration Act, is to pass upon issues of fact raised by exceptions to the examiner's report. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Issues to be submitted to jury. - Party is entitled to have submitted to a jury certain disputed issues of fact found by the examiner upon which the examiner concluded that the other party had acquired prescriptive title and was entitled to have the land registered in that party's name. Allen v. Johns, 235 Ga. 667 , 219 S.E.2d 369 (1975).

Either party may request jury. - Either the applicant or the defendant in a land registration proceeding may insist upon a jury trial upon any material issue of fact arising out of exceptions to the examiner's report. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Provision for jury trial upon demand mandatory. - See Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921); Saunders v. Staten, 152 Ga. 142 , 108 S.E. 797 (1921).

Jury empanelment not required if there are no material issues of fact. - If an examination of the record reveals no material issues of fact and further reveals that the finding of the examiner was demanded by the evidence, then it is not error for the court, instead of empaneling a jury and directing a verdict, to render judgment in accordance with the findings of the examiner. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Failure to request jury trial not waiver. - Fact that neither party requests a trial by jury does not operate as a waiver of jury trial, except as to such issues of fact as might be raised by exceptions to the examiner's report. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

When there has been no express waiver and the parties merely fail to demand a jury trial upon issues specifically designated by the statute, the waiver is therefore only that which may be implied from such inaction, and it should not be extended beyond the plain meaning of the statute. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Effect of waiver of jury trial. - Waiver of jury trial authorizes the trial judge to act as jury only to the extent of passing upon the exceptions as a jury would otherwise have done and does not carry consent for the judge to act as trier for the purpose of making new findings of fact. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Exceptions of law and fact to be separated. - Exceptions to an examiner's report must separately classify exceptions of law and exceptions of fact, making each exception clear and distinct, specifying the errors complained of. Bird v. South Ga. Indus. Co., 150 Ga. 420 , 104 S.E. 232 (1920).

Failure to support exceptions is ground for dismissal. - Neglect of a party excepting to an examiner's report on matters of fact, or on matters of law dependent for a decision upon the evidence, to set forth, in connection with each exception of law or fact, the evidence necessary to be considered in passing thereon, or to point out the same by appropriate reference, or to attach as exhibits to one's exceptions those portions of the evidence relied on to support the exceptions, is sufficient reason in a land registration proceeding for dismissing or disapproving the exceptions of fact and for overruling or dismissing the exceptions of law. Davis v. Varn Turpentine & Cattle Co., 167 Ga. 690 , 146 S.E. 458 (1929); Morris v. James, 216 Ga. 272 , 116 S.E.2d 286 (1960).

Remand to examiner lies within the discretion of trial judge, whose decision will not be reversed when appellees fail to show that the trial court has abused this discretion. Bruce v. Rowland Hills Corp., 243 Ga. 278 , 253 S.E.2d 709 (1979).

When de novo investigation and report required. - On sustaining the exceptions to an examiner's report, the case should be referred again to the same or a different examiner for a de novo investigation and report. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Adoption of report without transcript. - Examiner's brief of the evidence in a title registration proceeding fully complied with O.C.G.A. § 44-2-103(b) , and a trial court did not err in adopting the report without first reviewing a transcript; if a stenographic report did exist, the registrant never made timely request that the report be filed or direct the trial court's attention to evidence appearing in the report. A A OK, Ltd. v. City of Atlanta, 280 Ga. 764 , 632 S.E.2d 633 (2006).

Right to new trial. - See Rock Run Iron Co. v. Heath, 155 Ga. 95 , 116 S.E. 590 (1923).

Cited in Smith v. Board of Educ., 166 Ga. 535 , 143 S.E. 578 (1928); Reynolds v. Smith, 186 Ga. 838 , 199 S.E. 137 (1938); Burgess v. Simmons, 208 Ga. 672 , 68 S.E.2d 902 (1952); Simon Wolf Endowment Fund, Inc. v. West, 210 Ga. 172 , 78 S.E.2d 420 (1953); City of Marietta v. Glover, 225 Ga. 265 , 167 S.E.2d 649 (1969); Smith v. Bruce, 241 Ga. 133 , 244 S.E.2d 559 (1978); Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 8, 14, 15.

44-2-104. Authority to inspect pertinent records.

For the purposes of this article, every clerk of the superior court, every judge of the probate court, and every other officer in this state having charge of public records shall allow every examiner appointed by any court in this state free inspection of all the public records relating to his office and in any manner pertaining to any matter under the investigation of an examiner.

(Ga. L. 1917, p. 108, § 68; Code 1933, § 60-305; Ga. L. 1982, p. 3, § 44.)

44-2-105. Appointment of stenographer; compensation.

In any case, by consent of the parties or upon the order of the judge, the examiner may procure the services of a stenographer to report the testimony taken before him. The stenographer's compensation, unless agreed on by the parties, shall be fixed by the judge and taxed as costs.

(Ga. L. 1917, p. 108, § 71; Code 1933, § 60-306.)

PART 4 R EGISTERS AND REGISTRATION

RESEARCH REFERENCES

ALR. - Constitutionality of provisions of Torrens Law as to prima facie effect of the examiner's reports, 19 A.L.R. 62 .

Failure properly to index conveyance or mortgage of realty as affecting constructive notice, 63 A.L.R. 1057 .

44-2-120. Furnishing and maintaining register books; issuance of owner's certificate of title.

  1. The governing authority of each county shall provide the following books for the clerk of the superior court in the county:
    1. A book, to be known as the "register of decrees of title," in which the clerk shall enroll, register, and index all decrees of title;
    2. A book, to be known as the "title register" and to be prepared, printed, and ruled in substantially the manner as provided in Code Section 44-2-234, in which the clerk shall enroll, register, and index the certificate of title provided for in this part and all subsequent transfers of title and note all voluntary or involuntary transactions in any way affecting the title to said land which are authorized to be entered thereon; and
    3. Such additional books as may, from time to time, be necessary.
  2. Upon the registration of the decree and certificate of title, the clerk shall issue, under the seal of his office, an owner's certificate of title which shall be delivered to the owner or his duly authorized agent or attorney.

    (Ga. L. 1917, p. 108, § 28; Code 1933, § 60-401.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 18.

44-2-121. Signing and dating register entries and owners' certificates.

Every entry made in the register of decrees of title, in the title register, or upon the owner's certificate under any of the provisions of this article shall be signed by the clerk and dated with the year, month, day, hour, and minute accurately stated.

(Ga. L. 1917, p. 108, § 29; Code 1933, § 60-402.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 18.

44-2-122. Clerk's duties and liabilities; conclusive effect of registration entries; time for filing caveat; petition for direction.

  1. The clerk of the superior court shall determine whether any instrument, writing, record, or other matter is in proper shape for registration and shall correctly and legally make the registration, including all formal incidents thereto. The clerk shall be liable to any injured person for any failure of duty in this respect.
  2. All registrations of title and all entries and notations made by him upon the title register of transfers or of the cancellation or discharge of liens or encumbrances shall be prima facie conclusive. Unless a caveat shall be filed, as provided for in Code Section 44-2-134, seeking to set aside, modify, or otherwise affect such entry, notation, or registration, within 12 months from the date of the making of the same upon the title register, the same shall become absolutely conclusive upon all persons. This subsection shall be considered and construed as a statute of limitations against the questioning of the correctness of the clerk's action and shall be without exception on account of disabilities but shall not operate as a limitation in favor of the clerk regarding any action against him for wrongdoing or neglect of duty.
  3. In the event application is made to a clerk to have any transfer or other transaction registered or noted and he is in doubt as to whether the same should be registered, entered, or noted or is in doubt in regard to any detail thereof, either the clerk or any party at interest may petition the judge of the court for direction. After it has appeared that the parties at interest have had reasonable notice, the judge may proceed to hear the matter and to give directions and instructions to the clerk; and it shall be the duty of the clerk to follow the directions and instructions of the court.
  4. In all matters required of the clerk under this article, he shall be subject to the direction and orders of the court.

    (Ga. L. 1917, p. 108, § 59; Code 1933, § 60-413.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 173.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 42.

ALR. - Transferees entitled to protection under Torrens Act certificate of title, 42 A.L.R.2d 1387.

44-2-123. Clerk's duty to ensure proper execution of voluntary transfer; liability for damage or loss arising from registration of improperly executed transfer.

Before registering any voluntary transfer, the clerk shall satisfy himself that the same is witnessed and attested or acknowledged in accordance with law. The clerk and the sureties on his bond shall be liable for any loss or damage occasioned to any person through registration of a transfer not so executed.

(Ga. L. 1917, p. 108, § 106; Code 1933, § 60-411.)

44-2-124. Performance of duties upon disqualification, death, or disability of clerk.

If a clerk of the superior court is disqualified by reason of relationship, interest, or any other cause or in case of the death or other disability of the clerk to act in any matter arising under this article, the duties required of the clerk may be performed either by the judge of the probate court of the county or by a special clerk appointed by the judge for that purpose. The entry of the appointment of the special clerk and of the purpose for which he is appointed shall be entered and recorded upon the minutes of the court.

(Ga. L. 1917, p. 108, § 69; Code 1933, § 60-414.)

44-2-125. When recordation other than registration not required; filing instruments; admissibility of certified copies and use as evidence; recordation procedure when instrument is not in short form.

  1. Wherever a transfer, transfer as security for debt, or mortgage relating to an estate in registered land is executed in the form prescribed in this article and duly registered and noted in the register of titles and consists of nothing more than the filling in of the blanks on the prescribed form so that the entry of registration on the title register construed in connection with the prescribed form shows the full transaction, it shall not be necessary to record the transfer, security transfer, or mortgage other than by the registration in the title register. Such registration shall for all purposes take the place of recordation as to such instruments so executed. A certified copy of such registration shall be admissible in evidence on like terms and with like effect as a certified copy of a deed, mortgage, or other similar instrument. In such cases, the original instrument of transfer, together with the canceled owner's certificate, or the original instrument of transfer as security for debt, or the original mortgage, as the case may be, shall be numbered with the registration number of the title to which it relates and carefully filed away in such manner as to be of easy access and shall be preserved as a part of the records of the office of the clerk of the superior court. In case of a mortgage executed as indicated above, the clerk shall on request make a certified copy and deliver it to the mortgagee; and such certified copy shall stand for all purposes in lieu of the original and shall be original evidence to the same extent as is an original mortgage in any court.
  2. If the instrument of transfer is in the short form as indicated above, or if it contains any provisions not provided for in such form, or if it was executed for the purpose of transferring any estate or interest in the registered land in trust, upon any condition or upon any peculiar or unusual limitation, the details at variance with or additional to those provided for under the prescribed form need not be entered in full on the title register and the owner's certificate; but the clerk shall record such instrument in full on the deed book of the county in like manner as deeds to unregistered land are recorded and shall, after the general entry of the transfer on the title register and on the owner's certificate, add thereto a notation that the same is "in trust," "upon condition," or "on special terms," as the case may be, followed by the words "See deed book (or mortgage book, as the case may be) ____________ page ____________." Like procedure shall be followed in case of a transfer to secure debt or a mortgage not following the prescribed form, but in such cases the clerk shall not retain the original instrument but shall return the same to the creditor after it has been registered and recorded.

    (Ga. L. 1917, p. 108, § 38; Code 1933, § 60-403.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 3, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 19, 28, 30.

ALR. - Right of vendee to record title where vendor to covenants to furnish abstract showing title, 7 A.L.R. 1166 .

44-2-126. Notation of lien or encumbrance on certificate of title - In general.

Any writing or instrument for the purpose of encumbering or otherwise dealing with equitable interests in registered land or tending to show a claim of lien or encumbrance thereon or right therein may be noted on the certificate of title in the title register with such effect as it may be entitled to have.

(Ga. L. 1917, p. 108, § 51; Code 1933, § 60-404.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 45, 46.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 27, 28.

44-2-127. Notation of lien or encumbrance on certificate of title - Registered encumbrances, rights, and adverse claims.

All registered encumbrances, rights, or adverse claims affecting registered estates shall continue to be noted upon every outstanding certificate of title and owner's certificate until they have been released or discharged unless they relate to only a particular portion of the property, in which case they shall be noted only upon those certificates and duplicate certificates which relate to that portion of the property.

(Ga. L. 1917, p. 108, § 39; Code 1933, § 60-405.)

44-2-128. Registration of transactions affecting unregistered land as notice.

Every voluntary or involuntary transaction which if recorded, filed, or entered in any clerk's office would affect unregistered land shall, if duly registered on the title register, be notice to all persons from the time of such registration and shall operate in accordance with law and this article upon such registered land.

(Ga. L. 1917, p. 108, § 40; Code 1933, § 60-406.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 10, 20.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 28.

ALR. - Failure properly to index conveyance or mortgage of realty as affecting constructive notice, 63 A.L.R. 1057 .

44-2-129. Registration of involuntary transactions on court's order; form.

Except as otherwise provided in this article, in cases of involuntary transactions no transfer of the title shall be registered except upon an order granted by the judge of the court in the form substantially provided in Code Section 44-2-244.

(Ga. L. 1917, p. 108, § 41; Code 1933, § 60-407.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 51.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 38.

44-2-130. Cancellation of decedent's certificate and issuance of new certificate to personal representative.

Upon the grant of letters of administration or executorship by the probate court and upon presentation of a certified copy of the letters to the clerk of the superior court together with the presentation of the owner's certificate, the clerk shall make a special entry on the certificate of title on the title register showing the presentation of the letters of administration or executorship, the name of the representative, the court and county of his appointment, and the dates of the letters and of the transfer of the title to the representative. The clerk shall thereupon cancel the certificate of title and the owner's certificate outstanding in the name of the decedent and shall issue to the administrator or the executor, as the case may be, a new owner's certificate. If the decedent was the owner of only a fractional undivided interest in the title and the outstanding certificate stood in the name of the decedent and others or if from any other cause the decedent was not the sole owner of the certificate, the outstanding certificates shall nevertheless be canceled and a new certificate registered and a new owner's certificate issued with the name of the personal representative substituted for the name of the decedent.

(Ga. L. 1917, p. 108, § 44; Code 1933, § 60-408.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 45.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 5.

44-2-131. Declaration of title by descent upon petition; service of petition and publication of notice; transfer of registered title and issuance of new certificates; rights of surviving spouse.

  1. Where the owner of registered land dies intestate and there is no administration upon the estate within 12 months from the date of his death or in the event administration shall terminate without the land being disposed of, the heirs at law of the intestate or any one or more of the persons who claim to be heirs at law of the intestate may petition the superior court of the county to have their title by descent declared as to the registered land.
  2. The petition:
    1. Shall set forth the names of all persons who are alleged to be the heirs at law and, if all are not joined, process or notice shall be served upon all those not joined;
    2. Shall be verified by the affidavit of one of the petitioners;
    3. Shall set forth in detail the name and last known address of the decedent;
    4. Shall include a statement whether he was married, single, or a widower and, if married more than once, the names of all of his wives;
    5. Shall include the names of all children and descendants of children, if any, showing in detail whether the parents of such children are living or dead;
    6. Shall show in detail how and whether the persons who are alleged to be the heirs at law are in fact the heirs at law of such decedent under the rules of inheritance;
    7. Shall give the date of the death of the decedent;
    8. Shall set forth that the decedent died leaving no will; and
    9. Shall state that in the judgment of the applicant there is no need for administration upon the estate.
  3. Upon the petition being filed, the judge shall grant an order setting the petition down to be heard at the courthouse in the county where the land is located, on some day not less than 30 days from the date of the petition, and calling on all persons to show cause before the court on that day why the persons named as heirs at law in the petition should not be so declared to be by the judgment and decree of the court. A copy of the petition and the order of the court thereon shall be published in the newspaper in which the sheriff's sales of the county are advertised in like manner as sheriff's sales are advertised.
  4. On the day named for the hearing, unless the matter is continued by order or orders of the judge to some future time, the court shall proceed to hear and determine the question together with any objections which may be filed and to adjudge and decree that the alleged decedent is dead, that there is no administration on his estate, that he left no will, and who are his heirs at law; provided, however, if it appears that either the alleged decedent is not dead, or that there is administration upon the estate, or that an application for administration is pending, or that the decedent left a will, the petition shall be dismissed.
  5. Upon granting an order of heirship, the court shall order a transfer of the registered title from the decedent to the heirs at law; and, upon production of the owner's certificate of the decedent and the judge's order for a transfer, the clerk shall register the transfer, cancel the certificate registered in the name of the decedent, cancel the owner's certificate, and issue a new owner's certificate in the name of the persons declared to be the heirs at law.
  6. In the petition if the alleged heirs at law are of full age and under no disabilities and the same so appears to the court and if it further appears that they have voluntarily partitioned the land in kind among themselves, the court may, in connection with the order of transfer, direct that the certificate standing in the name of the decedent be canceled and that new certificates be registered and issued to each of the heirs for the particular parcel of land coming to each under the voluntary partition set forth in the petition.
  7. If the decedent has left a widow, she shall be a party to the proceedings. The court shall specifically provide what interest or estate she shall take under the decree of heirship; and, except where in the decree the land is partitioned into separate tracts, the court shall, in the decree of heirship and in the order of transfer, specifically set forth, except where the widow is the sole heir, what undivided interest each heir shall take.
  8. If the decedent is a female, the procedure shall be similar except insofar as the difference between the rights of the husband and wife upon the death of the spouse shall make changes necessary.
  9. Where the wife claims to be entitled to take possession of the estate without administration under former Code Section 53-4-2 as such existed on December 31, 1997, if applicable, or Code Sections 53-1-7 and 53-2-1, the procedure shall be substantially in the same manner.

    (Ga. L. 1917, p. 108, § 45; Code 1933, § 60-409; Ga. L. 1998, p. 128, § 44; Ga. L. 2011, p. 752, § 44/HB 142.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, substituted "former Code Section 53-4-2 as such existed on December 31, 1997, if applicable, or Code Sections 53-1-7 and 53-2-1," for "Code Section 53-4-2 of the 'Pre-1998 Probate Code,' if applicable, or Code Sections 53-1-7 and 53-2-1 of the 'Revised Probate Code of 1998,'" in subsection (i).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 5.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 2.

44-2-132. Compelling production of owner's certificate for registration of involuntary transfer; cancellation of certificate upon failure to produce it; notice of cancellation.

Whenever an involuntary transfer is sought to be registered under this article and the owner's certificate is not produced so that it can be attached to the order directing a transfer, the court shall have the power to issue a subpoena for the production of documentary evidence or any other process designed to compel the production of the owner's certificate, including attachment for contempt. If, after the process issues, the owner's certificate is not produced or if it appears to the court that there is no practical means of compelling its production, the court may nevertheless grant the order of transfer but shall cause the clerk to enter a cancellation of the certificate of title on the title register and to give notice once a week for four weeks in the newspaper in which the sheriff's sales of the county are advertised that such certificate has been canceled; the cost of making the advertisement shall be deposited with the clerk before the judge shall grant the order of transfer without the production of the certificate.

(Ga. L. 1917, p. 108, § 52; Code 1933, § 60-410.)

RESEARCH REFERENCES

ALR. - Lis pendens: grounds for cancellation prior to termination of underlying action, absent claim of delay, 49 A.L.R.4th 242.

44-2-133. Procedure for obtaining duplicate of lost owner's certificate.

Whenever an owner's certificate of title is lost or destroyed, the owner or his personal representative may petition the court for the issuance of a duplicate. Notice of the petition shall be published once a week for four successive weeks in the newspaper in which the sheriff's sales of the county are published; provided, however, that the court may in any case order additional notice to be given, either by publication or otherwise, before directing the issuance of a duplicate certificate; and provided, further, that where the petition is presented by a personal representative of a deceased person claiming that the certificate was lost or destroyed while in the possession of the decedent, the notice of the petition shall be published once a week for eight successive weeks instead of the four weeks required in other cases. Upon satisfactory proof having been exhibited before it that the certificate has been lost or destroyed, the court may direct the issuance of a duplicate certificate which shall be appropriately designed and shall take the place of the original owner's certificate.

(Ga. L. 1917, p. 108, § 58; Code 1933, § 60-412.)

44-2-134. Filing caveat objecting to entry in title register; show cause hearing upon caveat.

  1. If any person at interest objects to any entry, registration, or notation made by the clerk upon the title register, he may, unless such entry, registration, or notation has become conclusive by lapse of time under Code Section 44-2-122, file with the clerk of the superior court a caveat setting forth the entry, notation, or registration to which he objects, what interest he has in the subject matter, and the ground of his objection and praying for such relief as he desires and deems appropriate under the circumstances. The clerk shall note upon the title register the fact that a caveat has been filed and by whom and to what entry, notation, or act of registration it applies.
  2. After the filing of the caveat has been noted, the matter shall be presented to the judge who shall order all persons at interest to show cause on a day named why the relief prayed for in the caveat should not be granted. Upon proof being made that due notice has been given to all parties at interest, the judge shall proceed to hear the matter and shall render a judgment of the court giving direction to the matter and may thereupon require such entry, registration, or notation to be canceled or modified and may require the outstanding certificate of title and owner's certificate to be modified accordingly. To that end the court may require the outstanding owner's certificate of title to be brought into court by subpoena for the production of documentary evidence or other process, including attachment for contempt; and, if the court finds that production of the certificate cannot be compelled, it shall provide for publication of notice of the court's action thereon for a period of time not less than once a week for four weeks in the newspaper in which the sheriff's sales of the county are advertised, the expense of making the publication to be provided for in such manner as the court shall order.

    (Ga. L. 1917, p. 108, § 60; Code 1933, § 60-416.)

JUDICIAL DECISIONS

Party to proceeding cannot go back to decree of registration. - Provisions for a caveat by any interested person objecting to any entry, notation, or registry made by the clerk, found in this statute, are not intended to and, as a matter of law cannot, authorize a party to the registration proceeding to go back to the decree of registration. Miller v. Turner, 209 Ga. 255 , 71 S.E.2d 517 (1952) (see O.C.G.A. § 44-2-134 ).

Remedies in case of fraud. - In cases of fraud, the true owner, if the owner moves within 12 months, has a summary remedy under Ga. L. 1917, p. 108, § 60 (see O.C.G.A. § 44-2-134 ), or a remedy by plenary suit under Ga. L. 1917, p. 108, § 63 (see O.C.G.A. § 44-2-137 ). After the expiration of 12 months one can only resort to such plenary suit; but the existence of summary remedy does not preclude such owner from resorting to such plenary remedy, either within or after the expiration of such 12 month period, if one asserts such plenary remedy under the statute within seven years. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923).

Motion to cancel notice of lis pendens is not properly classifiable as caveat under O.C.G.A. § 44-2-134 . Jay Jenkins Co. v. Financial Planning Dynamics, Inc., 256 Ga. 39 , 343 S.E.2d 487 (1986).

Cited in Lankford v. Milhollin, 203 Ga. 491 , 47 S.E.2d 70 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 27.

44-2-135. Obtaining notations in title register.

In order to cause notations of judgments, liens, encumbrances, or special rights of any kind, other than voluntary transactions, claimed by any person against registered land to be made, the person desiring the notation shall, by himself, his agent, or his attorney, file, upon a form substantially in compliance with Code Sections 44-2-246 through 44-2-248, a request for the notation to be made setting forth the claim against the registered land; and, in case the lien or special rights relate to any other matter of record or court proceeding, he shall state the book and page where recorded and, if it relates to any special right, shall succinctly give the details of the right so claimed. In case the notation is for the purpose of protecting the lien of a judgment, the person making the application for the notation shall produce and exhibit to the clerk the execution or a certified copy of the judgment except in cases where the judgment is rendered in the superior court of the same county where the registration is made, in which event production of the execution or certified copy of the judgment shall not be required; but the clerk may act upon inspection of the original judgment on the minutes of his own court.

(Ga. L. 1917, p. 108, § 61; Code 1933, § 60-417.)

JUDICIAL DECISIONS

Cited in Lankford v. Milhollin, 203 Ga. 491 , 47 S.E.2d 70 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 39.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 27.

44-2-136. Cancellation of mortgage, lien, equity, or lis pendens; entry of cancellation on title register and certificate; procedure upon refusal to authorize cancellation.

  1. Voluntary cancellations may be made of any mortgage, certificate of indebtedness, or any lien, equity, encumbrance, lis pendens, or other similar matter relating to registered land or any interest therein and may be entered by the clerk upon the title register and the owner's certificate. The entry, notation, or registry of such cancellation may be made upon the written authority of the person for whose benefit the original registration, notation, or entry was made or upon the written authority of his personal representative or his lawful assignee, in a form substantially in compliance with that prescribed in this article, and attested by any officer authorized to attest deeds; alternatively, it may be made upon order of the judge. In case of a creditor's certificate the same shall also be surrendered and canceled. Notations of delinquent taxes or assessments may be canceled upon the production of a certificate of the proper tax officer showing that such taxes or assessments have been paid.
  2. If the holder of the mortgage, certificate of indebtedness, or any lien, equity, encumbrance, lis pendens, or other similar matter relating to the registered land or any interest therein refuses to give the requisite authority for the cancellation thereof if and when the debt has been paid or no longer exists or when it is no longer legal and equitable that the registered title should be encumbered by the same, any person adversely affected may petition the court for an involuntary cancellation of the same. In such case, the judge shall cause a rule nisi to be served upon such holder requiring him or her to show cause on a day set, which day shall be not less than 30 days from the date the rule was served, why the mortgage, certificate of indebtedness, lien, or other encumbrance on the registered title should not be canceled. The petition and rule nisi shall be served personally on such holder at least 15 days before the date set for the hearing if such service be practical; but, when it is made to appear to the court that personal service cannot be practically effected, the judge may pass an order providing how the service shall be made. In case the holder is not a resident of this state or is unknown, service by publication shall be made upon the order of the judge in the manner prescribed in Code Section 9-11-4. In case of minors and persons of unsound mind, guardians ad litem shall be appointed. If any issue of fact as to the right of the petition to have the cancellation made appears, such issue shall, upon demand of either party, be tried by jury, with right of the judge to grant a new trial. If it appears that the registered title should be freed from the encumbrance, the court shall decree accordingly and order the cancellation noted upon the certificate of title. The judge shall have power by attachment for contempt, if necessary, to compel the holder of the mortgage certificate of indebtedness or other instrument to surrender it for cancellation.

    (Ga. L. 1917, p. 108, § 62; Code 1933, § 60-418; Ga. L. 1943, p. 326, § 1; Ga. L. 2016, p. 883, § 3-11/HB 927.)

The 2016 amendment, effective January 1, 2017, in subsection (b), inserted "or her" in the second sentence, substituted "but, when" for "but, where" in the third sentence, and deleted the former last sentence, which read: "The Supreme Court shall have jurisdiction for the correction of errors in the trial court.". See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides, in part, that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews. - For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 205 (2016).

JUDICIAL DECISIONS

Preservation for review on appeal. - Husband's motion on appeal for cancellation of a lis pendens entered in favor of his wife pursuant to O.C.G.A. § 44-2-136 was not considered because the propriety of the ruling by the trial court denying cancellation of the lis pendens was not enumerated as error on appeal, and the matter was not properly before the appellate court pursuant to O.C.G.A. § 5-6-34(d) . Gardner v. Gardner, 276 Ga. 189 , 576 S.E.2d 857 (2003).

Cited in Lankford v. Milhollin, 203 Ga. 491 , 47 S.E.2d 70 (1948).

RESEARCH REFERENCES

C.J.S. - 76 C.J.S., Registration of Land Titles, § 27.

44-2-137. What adverse claims affect registered land; effect of fraud or forgery; limitations on actions to set aside.

  1. Except in cases of fraud or forgery to which he is a party or to which he is a privy without valuable consideration paid in good faith, every registered owner of any estate or interest in land brought under this article shall hold the land free from any and all adverse claims, rights, or encumbrances not noted on the certificate of title in the title register except:
    1. Liens, claims, or rights arising or existing under the laws or Constitution of the United States which the laws of this state cannot require to appear of record under registry laws;
    2. Taxes and levies assessed for the current calendar year;
    3. Any lease for a term not exceeding three years under which the land is actually occupied; and
    4. Highways in public use and railroads in actual operation.
  2. No proceedings to attack or to set aside any transaction for such fraud or such forgery referred to in this Code section shall be brought or be entertained by any court unless the same is brought within seven years from the date of the transaction or of the registration to which the same relates. Nothing in this subsection shall conflict with the provisions of this article allowing attack for good cause to be made upon a registration made by the clerk at any time within 12 months from the date of such registration.

    (Ga. L. 1917, p. 108, § 63; Code 1933, § 60-419.)

JUDICIAL DECISIONS

Statute makes no provision for existing claim to be subsequently recorded. Lankford v. Milhollin, 204 Ga. 193 , 48 S.E.2d 729 (1948) (see O.C.G.A. § 44-2-137 ).

Allegations of true owner in setting aside registration of owner's lands in another. - As in cases of fraud or forgery, the decrees registering title are not conclusive upon adverse claimants. When the true owner files an equitable petition to set aside a registration of the owner's lands in the name of another, it is not incumbent upon the owner to allege that the owner was ignorant of the facts upon which the owner attacks the registration, or that the owner was prevented from making it by the fraud of the applicant, unmixed with fraud or negligence on the owner's part. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923).

Fraud cannot be based upon constructive notice and there must be actual notice of existent facts, concealment of which was used in effort to defraud. Thus, failure to disclose a fact of which one has no actual notice cannot constitute fraud merely because one to whom fraud was imputed did not exercise ordinary diligence to discover facts which might have been ascertained thereby. Hudson v. Varn Turpentine & Cattle Co., 176 Ga. 538 , 168 S.E. 581 (1933).

Knowing registration under forged deed authorizes action to set aside. - Where an applicant for registration asserts title under a deed known by the applicant to be forged, and the application for registration is based on such deed, the applicant is guilty of such fraud as will authorize the true owner to institute an equitable action to set aside the certificate of registration. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923).

Cited in Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 9, 20, 23.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 19, 21, 22, 24.

ALR. - Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Transferees entitled to protection under Torrens Act certificate of title, 42 A.L.R.2d 1387.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

44-2-138. What limitations govern actions by injured party for fraud or negligence.

Notwithstanding any other provision of this article, any injured party may bring an action against any person or officer through whose fraud or negligence he may have suffered any loss or damage arising out of any acts of omission or of commission of such person or officer in connection with the matters and things arising from this article. All such actions shall be governed by the statutes of limitation which would otherwise relate to the transaction.

(Ga. L. 1917, p. 108, § 84; Code 1933, § 60-420.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 9.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 24.

ALR. - Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

44-2-139. Registration and title certificate to run with land.

Reserved. Repealed by Ga. L. 1989, p. 563, § 1, effective April 3, 1989.

Editor's notes. - This Code section was based on Ga. L. 1917, p. 108, § 64; Code 1933, § 60-421.

44-2-140. Availability of prescription or adverse possession against registered land.

Title to or right or interest in registered land in derogation of that of the registered owner may be acquired by prescription or adverse possession.

(Ga. L. 1917, p. 108, § 66; Code 1933, § 60-423; Ga. L. 1989, p. 563, § 2.)

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 315 (1989).

JUDICIAL DECISIONS

Cited in Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 20.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 25.

44-2-141. Rights, burdens, and incidents as to both registered and unregistered land; validity of transfers of title by last registered owner.

Except as otherwise specifically provided by this article, registered land and ownership therein shall be subject to the same rights, burdens, and incidents as unregistered land and may be dealt with by the owner and shall be subject to the jurisdiction of the courts in the same manner as if it had not been registered. Transfers of title made by the last registered owner as shown by the title register or said owner's representatives, heirs, or assigns and recorded in the deed records in the office of the clerk of superior court of the county in which the land is situated shall be valid transfers of title to the land so described.

(Ga. L. 1917, p. 108, § 73; Code 1933, § 60-424; Ga. L. 1952, p. 164, § 2; Ga. L. 1989, p. 563, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 20.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 19, 25.

44-2-142. Notation of change of name on register and certificate.

Any person who has any interest in registered land and whose name has been changed by marriage or other cause may, by petition to the judge of the court and upon proof of the facts, obtain an order directing the clerk to note the change of name upon the title register and upon the owner's certificate upon its being produced.

(Ga. L. 1917, p. 108, § 53; Code 1933, § 60-425.)

44-2-143. Notation of liens and lis pendens on register; effect absent notation.

No judgment, levy, or other lien except a lien for taxes for which special provision is made in this article shall be effective against registered land so as to affect any person taking a transfer thereof or obtaining any right or interest therein unless and until a notation of such judgment, levy, or lien is made upon the title register. The pendency of any action affecting the title to registered land or any interest therein shall not be held to be notice to any person other than the actual parties to such action unless a notation of the pendency of such action is made upon the title register.

(Ga. L. 1917, p. 108, § 54; Code 1933, § 60-426.)

JUDICIAL DECISIONS

Cited in Lankford v. Milhollin, 203 Ga. 491 , 47 S.E.2d 70 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 39, 46.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 22, 27.

ALR. - Lis pendens as affecting property in county or district other than that in which action is pending, 71 A.L.R. 1085 .

44-2-144. Freeing land from further registration; certificates as conclusive source of title; notation of encumbrances; when land automatically freed; registered land free of further registration; exception.

  1. The registered owner of the fee simple title to land may cause a transfer of the title to be registered to "himself, his heirs and assigns, free from further registration." Thereupon the land and the title thereto shall be free from the necessity of subsequent registration and shall, as to subsequent transactions, be exempt from this article so far as the interest of the person thus freeing it from registration and subsequent holders under him are concerned; but, as to such interest, the certificate of title and owner's certificate registered and issued on the last transfer shall stand as a conclusive source of subsequent title to the same extent as if it were a grant from the state. However, if the interest thus freed is, according to the title register, subject to liens, exceptions, encumbrances, trusts, or limitations of any kind, such liens, exceptions, encumbrances, trusts, or limitations shall not be affected but shall be noted on the owner's certificate as issued on the last transfer and shall be effective as long as they shall exist. If the fee simple is registered undividedly in the name of more than one person such as tenants in common or other like relationship of joint or common interest, it shall not be freed from registration except upon the unanimous action of the owners of the entire fee.
  2. A decree of registration rendered on or after February 15, 1952, shall operate to free the registered land from further registration unless it expressly provides that the land shall remain subject to this article.
  3. All lands heretofore registered in this state are declared to be free of further registration unless the order registering said title shall provide otherwise. The certificate of title and owner's certificate registered and issued on the last transfer shall stand as conclusive source of subsequent title. If the previously registered land has been devised, conveyed, or otherwise transferred by the last registered owner or said owner's representative, title shall vest in the party to whom the land was transferred or that party's heirs, successors, and assigns, notwithstanding the failure to have had the same transferred on the title register as provided in prior statutes; provided, however, if the land or interest freed is subject to a valid outstanding lien, exception, encumbrance, trust, or limitation according to the title register, the same shall not be affected but shall be effective as long as the same shall validly exist.

    (Ga. L. 1917, p. 108, § 65; Code 1933, § 60-422; Ga. L. 1952, p. 164, § 1; Ga. L. 1989, p. 563, § 4.)

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 315 (1989).

JUDICIAL DECISIONS

Cited in Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 30.

ALR. - Transferees entitled to protection under Torrens Act certificate of title, 42 A.L.R.2d 1387.

PART 5 C ONVEYANCE, TRANSFER, AND DESCENT

44-2-160. Manner of recording deeds conveying title to registered land; validity of previous conveyances of registered land.

Deeds conveying title to all registered estates shall be recorded in the same manner as deeds conveying title to unregistered lands are recorded. All previous conveyances of interests in registered lands by the last registered owner or said owner's representatives, heirs, or assigns and recorded in the deed records in the office of the clerk of the superior court in which the land is situated shall be valid transfers of said interests. Upon request, the clerk of the superior court is authorized to note on the title register the information regarding the transfers and that the land is no longer required to be transferred on said register under this article, "The Land Registration Law."

(Ga. L. 1917, p. 108, § 30; Code 1933, § 60-501; Ga. L. 1982, p. 3, § 44; Ga. L. 1989, p. 563, § 5.)

The 1989 amendment, effective April 3, 1989, rewrote the section.

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 315 (1989).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 30.

44-2-161. Partial transfer of registered land; undivided interest; interest in particular portion; notations on register; issuance of certificates.

  1. Whenever a part of any registered land is to be transferred or conveyed, such transfer or conveyance shall be in a form substantially the same as that used for a total transfer; but it shall set forth particularly and specifically the portion of the land transferred, if it is an undivided interest, or, if it is a particular portion of the tract, it shall describe the portion accurately and definitely.
  2. In case an undivided interest is transferred, upon presentation of the transfer together with the owner's certificate of title, the clerk shall not cancel the owner's certificate so presented nor the certificate of title on the title register but shall enter a notation of the partial transfer on the certificate of title, on the title register, and on the owner's certificate; and the clerk shall also register upon the title register a certificate of title in the name of the grantee of the undivided portion of the estate so transferred and shall issue him a corresponding owner's certificate setting out the part or amount of land transferred, as the case may be.
  3. If the transfer is of a divided part of the land, the clerk shall first enter the fact of the transfer upon the certificate of title on the title register and shall cancel the certificate of title on the title register and the owner's certificate of title. Thereupon, he shall register separate new certificates of title on the title register, one in the name of the transferee for the portion of the tract conveyed to him and the other in the name of the transferor for the portion retained; and the clerk shall also issue separate new owners' certificates accordingly.
  4. The clerk shall note upon the title register and the owners' certificates the reference and cross-reference to the certificates referred to in subsections (b) and (c) of this Code section.

    (Ga. L. 1917, p. 108, § 31; Code 1933, § 60-502.)

44-2-162. Subdivision of registered land; procedure.

The owner or owners of a tract of land embraced in a certificate may divide it into smaller tracts and, upon surrender of his or their owner's certificate, cause separate certificates to be issued for the respective smaller tracts. The procedure in such cases shall be for the owner or owners to petition the judge and to attach to or include within the petition a map or plat showing the tract as registered and the subdivision for which they desire the new certificates. The judge shall examine the petition and the plat and, if he is not fully satisfied that the content of the original tract is exactly equivalent to the sum of the contents of the smaller tracts into which it is subdivided, may order a survey at the owner's expense. If and when the judge is satisfied on this subject, he shall pass an order directing the clerk to cancel the certificate of title on the record upon surrender of the outstanding owner's certificate and to issue new and separate certificates of title and owners' certificates for the smaller tracts into which the original tract is subdivided, all of which new certificates shall carry the same limitations and notations as the canceled certificate, as in the case of a transfer.

(Ga. L. 1917, p. 121, § 31; Code 1933, § 60-502; Ga. L. 1943, p. 326, § 1.)

44-2-163. Conveyance to secure debt; form; notation and registration; creditor's certificate.

The owner of any registered land who desires to convey the land as security for debt and with power of sale without foreclosure may do so by a short form of transfer substantially in the form provided in Code Section 44-2-241. The form shall be signed and properly acknowledged or attested as if it were a deed to land and shall be presented together with the owner's certificate to the clerk. The clerk shall note on the owner's certificate and on the certificate of title in the title register the name of the creditor, the amount of debt, and the date of maturity of the debt and shall show that a creditor's certificate has been issued therefor. When only a part of the registered estate is so conveyed, the clerk shall note on the book and the owner's certificate the part so conveyed. The clerk shall retain, number, and file away the instrument of transfer and shall issue and deliver to the creditor a creditor's certificate, over his hand and seal, setting out the portion so conveyed. All registered encumbrances, rights, or adverse claims affecting the estate represented thereby which are in existence at the time the creditor's certificate is issued shall be noted thereon.

(Ga. L. 1917, p. 108, § 32; Code 1933, § 60-503.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 39, 45, 49.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 27, 30, 31.

44-2-164. Assignment or negotiation of creditor's certificate; effect of transfer of indebtedness; surrender and cancellation of certificate; order of cancellation; notation.

The creditor's certificate shall be assignable or negotiable to the same extent as the note or other evidence of indebtedness secured thereby may be, but assignments or transfers of the creditor's certificate need not be noted on the title register. A transfer or assignment of the indebtedness shall operate to transfer the creditor's certificate securing the same in like manner and to the same extent as is set forth in Code Section 10-3-1, relating to the case of transfer of indebtedness secured by mortgage, unless otherwise agreed between the parties. The creditor's certificate may be surrendered and canceled at any time by the owner thereof. It shall be the creditor's duty to surrender the certificate and give an order for cancellation of the same when the debt is paid. If he refuses, he may be compelled by the court to do so and in any proper case the judge may order a cancellation on the title register. Upon presentation of an order of cancellation with the surrendered creditor's certificate or upon presentation of the judge's order directing cancellation, the clerk shall enter a notation of the same in the register of titles and on the owner's certificate of title.

(Ga. L. 1917, p. 108, § 33; Code 1933, § 60-504.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 45.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 28, 29.

44-2-165. Sale by holder of creditor's certificate; application for transfer to purchaser; opportunity to object to transfer; order of application of sale proceeds.

If the debt secured by a creditor's certificate or any part thereof becomes due and unpaid, the holder of the creditor's certificate may, after advertising the property for sale in the manner prescribed by law for advertising sheriff's sales of land, sell the property at auction before the courthouse door of the county and sell it to the highest and best bidder for cash. The sale need not be conducted by the creditor or holder of the creditor's certificate personally but may be conducted through any agent or attorney. The holder of the certificate, his agent, or his attorney shall thereupon make an oath to the facts and apply to the judge for an order of transfer to the purchaser. The application shall be accompanied by a certified copy of the certificate of title from the title register as of the date of the sale. The judge shall cause at least five days' notice to be given to the debtor and to any persons who, according to the title register, have acquired any interest in the property subsequent to the issuance of the creditor's certificate; and, if no objections are made or if objections are made after a hearing, the judge shall grant an order of transfer with such directions for cancellation of other certificates and entries and otherwise as shall be in accordance with the justice of the case and with the spirit of this article. The proceeds of the sale shall be applied first to the payment of the costs of advertising the sale and obtaining the judge's order of transfer, then to the payment of the debt, and any remainder shall be paid to the debtor or his order.

(Ga. L. 1917, p. 108, § 35; Code 1933, § 60-505.)

44-2-166. Transfer to secure debt; notation of bond for title or to reconvey.

Nothing in this article shall prevent the owner of land from transferring his registered title as security for debt or from causing the title to be registered in the name of the creditor by transferring to the creditor as if he were an ordinary vendee of the registered title; and, if bond for title or bond to reconvey is given, it may be noted on the certificate of title on the title register and on the owner's certificate, provided it is attested or acknowledged as if it were a deed.

(Ga. L. 1917, p. 108, § 36; Code 1933, § 60-506.)

44-2-167. Validity and priority of unrecorded transfers of owner's certificate to registered lands.

Unrecorded transfers of owner's certificate to registered lands shall have the same validity as unrecorded deeds of conveyance. The validity and priority of unrecorded transfers shall be governed by Code Sections 44-2-1, 44-2-3, and 44-2-4.

(Ga. L. 1917, p. 108, § 37; Code 1933, § 60-507; Ga. L. 1989, p. 563, § 6.)

The 1989 amendment, effective April 3, 1989, rewrote the Code section.

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 315 (1989).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 30.

44-2-168. Descent of registered land as personalty.

Reserved. Repealed by Ga. L. 1989, p. 563, § 7, effective April 3, 1989.

Editor's notes. - This Code section was based on Ga. L. 1917, p. 108, § 42, and Code 1933, § 60-508.

44-2-169. Personal representative as trustee; right of personal representative to a commission; power of heirs to require transfer.

Subject to the powers, rights, and duties of administration, the personal representative of the deceased owner shall hold registered real estate as trustee for the persons beneficially entitled thereto by law. Unless otherwise entitled by law to commissions, the personal representative shall be entitled to no commissions thereon except in cases of necessary sales in the due course of administration. The heirs at law or beneficiaries entitled by law to the real estate shall have the same power of requiring a transfer of such estate as if it were personal estate.

(Ga. L. 1917, p. 108, § 43; Code 1933, § 60-509.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 144.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 36.

44-2-170. Right of personal representative to have registered land transferred to him where such land transferred to heirs before his appointment; action against heirs who have improperly appropriated land.

After a transfer of registered land has been made to the heirs at law or to the widow claiming to be the sole heir as stated in Code Section 44-2-131, a personal representative appointed at any time thereafter to administer the estate of the decedent shall not be entitled to have such registered land transferred to him for purposes of administration; but, if it appears that the heirs have appropriated to their use and ownership property which should have been appropriated to the purposes of administration, the personal representative of the decedent shall have a right of action against the heirs for the value of the property so appropriated, the judgment in such action to be molded according to the exigencies of the particular case, in accordance with the principles of equity.

(Ga. L. 1917, p. 108, § 46; Code 1933, § 60-510.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 144.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 36.

44-2-171. Procedure for ascertaining, and transfer to, heirs or beneficiaries.

  1. Whenever an administrator who has caused registered land to be transferred into his name stands ready to be discharged, if it is not necessary to sell such registered land for the purposes of administration and it should properly go to the heirs at law of the decedent, such administrator may institute a proceeding substantially similar to that prescribed in Code Section 44-2-131 for the ascertainment of the heirs at law and for an order directing the transfer of such estate from him to such heirs.
  2. If a trustee holds title to registered land and the beneficiaries of the trust are not definitely and particularly disclosed, if it becomes appropriate that they be definitely ascertained, such trustee may in like manner petition the court, upon showing that the trust has become executed, for a decree settling and ascertaining who the beneficiaries are and directing a transfer to such beneficiaries.

    (Ga. L. 1917, p. 108, § 47; Code 1933, § 60-511.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 144.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 36.

44-2-172. Transfer by clerk pursuant to judgment; production of copy of decree and order.

Wherever, as the result of a proceeding in any court, it is adjudged that a transfer of registered land should be made, such transfer may be made by the clerk upon the production of a certified copy of the decree showing in what book and page of the minutes of the court the decree is recorded and an order of the judge of the superior court of the county in which the land is located directing the transfer to be made. Once the certified copy and the order are produced, the certificate of title on the register of titles and the owner's certificate shall be canceled and new certificates shall be registered and issued accordingly. Production of the certified copy of the decree shall not be required when it is rendered in the same court as that in which the title is registered, but the clerk shall act upon the judge's order of transfer and the inspection of his own minute book.

(Ga. L. 1917, p. 108, § 49; Code 1933, § 60-513.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 112, 172, 173.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 42.

44-2-173. Petition for involuntary transfer; referral to examiner; notice; appointment of guardians ad litem; order of transfer.

Whenever it is desired to have an involuntary transfer registered, petition therefor shall be made to the judge of the court. The judge may hear the facts or, in his discretion, may refer the petition to an examiner of titles to hear and report the facts. The judge shall see to it that all parties at interest are given reasonable notice before any order of transfer is made. Whenever, in his judgment, the interests of justice so require, the judge shall cause notice of the petition to be published in the newspaper in which the sheriff's sales of the county are advertised for not less than four times in four separate weeks. Before granting an order directing the transfer, the judge shall fully satisfy himself that all parties who have or may have an interest in the matter of the transfer have been notified; that, in the case of minors or other persons under disability, guardians ad litem have been appointed to represent their interests; and that there is no valid reason why the order directing involuntary transfer should not be made. Thereupon, he shall enter a decree or judgment upon the minutes of the court, reciting the facts and stating that an order of transfer has been issued, and shall issue the order of transfer in substantially the form and manner prescribed in this article.

(Ga. L. 1917, p. 108, § 50; Code 1933, § 60-514.)

JUDICIAL DECISIONS

Cited in Taylor v. Taylor, 186 Ga. 667 , 198 S.E. 678 (1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 51.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 38.

44-2-174. Attack on transfers made to hinder, delay, or defraud creditors; decree voiding such transfer; entry of cancellations and transfers on register and certificate.

Nothing in this article shall prevent any transfer or other dealing with registered land from being attacked in court as having been made for the purpose of hindering, delaying, or defrauding creditors; provided, however, that, upon the trial of the case, the court having jurisdiction finds that the person taking the transfer or the apparent beneficiary of the dealing took the benefit of the same with knowledge of the fact that the intention of the transaction was to hinder, delay, or defraud creditors; and provided, further, that none of the rights of innocent parties shall be affected. If, in the proceeding, the court having jurisdiction of the case finds that any transfer or other dealing with registered land was made for the purpose of hindering, delaying, or defrauding creditors and that the rights of no innocent parties will be prejudiced by the court's judgment or decree, the court may pass such judgment or decree as will void the transfer or the effect of such other transaction as may have been made to hinder, delay, or defraud creditors. Upon the decree or judgment of the court, the judge of the superior court of the county where the land is located, upon application as provided in Code Section 44-2-173, may direct such cancellations and transfers to be entered upon the title register and upon the owner's certificate as shall be necessary to carry the decree or judgment into effect.

(Ga. L. 1917, p. 108, § 55; Code 1933, § 60-515.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 9.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 24.

44-2-175. Registering subsequent transfers or voluntary conveyances of land held in trust or otherwise restricted.

Whenever a writing or record is filed for the purpose of transferring registered land in trust, or upon any condition or unusual limitation expressed in the instrument, or with power given to sell, encumber, or deal with the land in any manner, no subsequent transfer or voluntary transaction purporting to be exercised under the powers given in the writing, instrument, or record shall be registered on the title register or on the owner's certificate except upon application to the court and an order of direction from the judge to the clerk as to how the subsequent transaction shall be entered.

(Ga. L. 1917, p. 108, § 56; Code 1933, § 60-516.)

44-2-176. Duty of tax officer to have delinquent taxes or assessments noted; effect of delinquencies prior to notation; liability of officer.

After December 31 of every year, it shall be the duty of every officer charged with the collection of any taxes or assessments charged upon any registered land or any interest therein which have not been paid when due to cause a notation of the fact that those taxes or assessments have not been paid to be entered upon the certificate of title on the title register along with the amount thereof. Unless such notation is made, the delinquent tax or assessment shall not affect any transfer or other dealing with the registered land; but the tax officer failing to perform such duty and his surety shall be liable for the payment of the taxes and assessments, with all lawful penalties and interest thereon, if any loss is occasioned to the state, county, municipality, or other political subdivision on account of such failure.

(Ga. L. 1917, p. 108, § 57; Code 1933, § 60-517.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 46.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 22.

PART 6 A SSURANCE FUND

JUDICIAL DECISIONS

Strictly construed. - This part is in derogation of the common law and must be strictly construed and followed. Grover v. Vintage Credit Corp., 155 Ga. App. 759 , 272 S.E.2d 732 (1980).

44-2-190. Payment into assurance fund upon original registration; determination of amount.

Upon the original registration of any land under this article, there shall be paid to the clerk as an assurance fund one-tenth of 1 percent of the value of the land to be determined by the court. The fund shall be subject to the trusts and conditions set forth in this part for the uses and purposes of this article.

(Ga. L. 1917, p. 108, § 74; Code 1933, § 60-701; Ga. L. 1982, p. 3, § 44.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-191. Separate account for assurance fund.

All money received by the clerk under Code Section 44-2-190 shall be kept in a separate account and paid promptly into the state treasury upon the special trust and condition that such moneys shall be set aside by the state treasurer in trust as a separate fund for the uses and purposes of this article, to be known as the "Land Registration Assurance Fund," which fund is appropriated to the uses and purposes set forth in this article.

(Ga. L. 1917, p. 108, § 75; Code 1933, § 60-702; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 3/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" in the middle of this Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-192. Investment of fund; application of income; transfer of excess.

The moneys collected pursuant to Code Section 44-2-190, insofar as they are not required to satisfy any judgment certified against the assurance fund under Code Section 44-2-195, shall be invested by the state treasurer in state bonds or validated county or municipal bonds in trust for the uses and purposes set forth in this article until the fund amounts to the sum of $500,000.00. The income or so much thereof as may be required may be applied towards the payment of the expenses of the administration of this article and the satisfaction of any such judgment. Whenever and so long as the face value of the bonds purchased shall equal the sum of $500,000.00, other money thereafter coming into the fund together with any income not required for the purposes set forth in this Code section shall be transferred from the Land Registration Assurance Fund to the general fund.

(Ga. L. 1917, p. 108, § 76; Code 1933, § 60-703; Ga. L. 1982, p. 3, § 44; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 3/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" in the middle of the first sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-193. Action against fund - Limitations; defense by Attorney General; measure of damages; tolling of limitations during disability; notice to unknown persons.

  1. Any person entitled to notice who had no actual notice of any registration under this article depriving him of any estate or interest in land and who is without remedy under this article may, within two years after accrual to him or to some person through whom he claims the right to bring such action, bring an action against the state treasurer in the superior court in the county where such land is located for the recovery out of the assurance fund of any damages to which he may be entitled by reason of any such deprivation. The state treasurer shall be served by the second original of proceedings so filed, which service shall be sufficient.
  2. The assurance fund shall be defended in such action and in any appeal by the Attorney General. The measure of damages shall be the value of the property at the time the right to bring the action first accrued; and any judgment rendered therefor shall be paid as provided in Code Section 44-2-195.
  3. If any person entitled to bring such action shall be under the disability of infancy, insanity, imprisonment, or absence from the state in the service of the state or of the United States at the time the right to bring such action first accrued, the action may be brought by him or his privies within two years after the removal of such disability.
  4. Notwithstanding subsection (a) of this Code section, all nonresidents of the state and all persons who are described in the proceedings as being unknown, or of unknown address, or as to whom it appears from the record that they could not be found so as to be served shall be considered as having had actual notice when notice has been published in accordance with this article.

    (Ga. L. 1917, p. 108, § 77; Code 1933, § 60-704; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, §§ 3, 4/SB 296.)

The 2010 amendment, effective July 1, 2010, in subsection (a), substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" in the middle of the first sentence, and substituted "state treasurer" for "director" near the beginning of the last sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-194. Action against fund - Parties defendant.

If an action contemplated by Code Section 44-2-193 is brought to recover for loss or damage arising only through the legal operation of this article, the state treasurer shall be the sole defendant. If the action is brought to recover for loss or damage arising on account of any registration made or procured through fraud, neglect, or wrongful act of any person not exercising a judicial function, both the state treasurer and such person or persons shall be made parties defendant.

(Ga. L. 1917, p. 108, § 78; Code 1933, § 60-705; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, §§ 3, 4/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" near the end of the first sentence, and substituted "state treasurer" for "director" near the end of the second sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-195. Action against fund - Execution on judgment; payment from fund; liability of other defendants to plaintiff and to fund.

If judgment shall be rendered for the plaintiff in any action brought pursuant to Code Section 44-2-193, execution shall issue against any defendants other than the state treasurer. If such execution is returned unsatisfied in whole or in part or if there are no such defendants, the clerk of the court in which the judgment was rendered shall certify to the state treasurer the amount due on the judgment; and the same shall be paid by the state treasurer out of the assurance fund under the special appropriation made of the fund for such purpose. Any person other than the state treasurer against whom any such judgment may have been rendered shall remain liable therefor or for so much thereof as may be paid out of the assurance fund; and the state treasurer may bring action at any time to enforce the lien of such judgment against such person or his estate for the recovery of the amount, with interest, paid out of the assurance fund.

(Ga. L. 1917, p. 108, § 79; Code 1933, § 60-706; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, §§ 3, 4/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" at the end of the first sentence and substituted "state treasurer" for "director" four times in this Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-196. Action against fund - How judgments satisfied when fund insufficient; interest.

If, at any time, the assurance fund is insufficient to satisfy any judgments certified against it as provided in Code Section 44-2-195, the unpaid amounts shall bear interest and shall be paid out of any money thereafter coming into the fund in the order in which they were accrued.

(Ga. L. 1917, p. 108, § 81; Code 1933, § 60-708.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-197. Liability of fund for registered owner's breach of trust.

The assurance fund shall not under any circumstances be liable for any loss, damage, or deprivation occasioned by a breach of trust, whether express, implied, or constructive, on the part of the registered owner of any estate or interest in land.

(Ga. L. 1917, p. 108, § 80; Code 1933, § 60-707.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

PART 7 F EES

44-2-210. Fees under article; deposit and payment of fees; award of costs.

  1. The fees payable under this article to the examiner of titles shall be as follows:
    1. For examining a title and making a report to the court, an examiner shall receive $1.00 per $1,000.00 or fraction thereof on the value of land, as determined by the court, not to exceed a maximum $100.00, and postage, plus $10.00; and
    2. In contested cases, for hearing the case and making a report to the court, the judge may, in his discretion, allow additional compensation but in an amount not exceeding the same fee as that allowed an auditor for reporting his findings in equity cases under subsection (a) of Code Section 9-7-22. The examiner shall not be paid extra for reporting the evidence; but when a stenographer is used by consent of the parties or order of the judge, the stenographer shall be paid his usual fee.
  2. The following fees shall be collected for the services of the sheriff under this article:
    1. For ascertaining and reporting to the courts the names and addresses of the persons actually occupying the premises described in the petition, a fee as provided in paragraph (1) of subsection (b) of Code Section 15-16-21 for each separate residence;
    2. For each service of process and notice required, a fee as provided in paragraph (1) of subsection (b) of Code Section 15-16-21; and
    3. For posting a copy of the petition upon the premises, fees as provided in paragraph (6) of subsection (b) of Code Section 15-16-21.
  3. For any other services of the clerk, the sheriff, or the surveyor which are not especially provided for in this Code section, a fee shall be fixed by the court to conform with what is usual and lawful for similar services rendered by such officer in ordinary cases.
  4. Upon filing each application for initial registration, the applicant shall pay to the clerk the fee for civil cases as provided in Code Section 15-6-77.
  5. In all contested cases and in all matters referred to the judge for his direction by any of the provisions of this article, the judge shall award the cost of the proceeding accordingly as in his discretion the justice of the case may dictate and, to that end, may assess all the costs against one of the parties or may divide the costs among the parties in such ratio as seems just.

    (Ga. L. 1917, p. 108, § 120; Code 1933, § 60-801; Ga. L. 1970, p. 497, § 11; Ga. L. 1991, p. 1324, § 8; Ga. L. 1992, p. 1311, § 3.)

PART 8 F ORMS

44-2-220. Power of judges to make general rules and forms for matters under this article; power to modify forms; uniformity of forms.

The judges of the superior courts may, from time to time, make general rules and forms for procedure relating to the subjects dealt with in this article and may modify the forms prescribed in this part. Such rules and forms shall be uniform throughout the state and shall be subject to this article and the general laws of this state.

(Ga. L. 1917, p. 108, § 70; Code 1933, § 60-601.)

44-2-221. Petition to register land.

The following is prescribed as the form of petition to be used when application is made for the original register of lands: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) ORIGINAL PETITION FOR REGISTRATION OF LANDS The petition of ________________ shows: The petitioner applies to have the land hereinafter described brought under the provisions of the Land Registration Law, and his title thereto confirmed and registered as provided therein, and under oath shows the following facts: 1. Full name of each applicant _____________________________________________ __________________________________________________________________________ 2. Residence of each applicant _____________________________________________ __________________________________________________________________________ 3. Post office address of each applicant ___________________________________ __________________________________________________________________________ 4. The name and address of applicant's agent or attorney upon whom process or notices may be served (not required unless applicant is a nonresident) ____ __________________________________________________________________________ 5. Full description of the lands (giving also land district and lot numbers where the land lies in that portion of the state where the lands have been surveyed by districts and numbers; and if more than one parcel is included, describe each parcel separately and distinctly). __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ containing ____________ acres. 6. What is the value thereof? $_____________________________________________ 7. At what value was it last assessed for taxes? $__________________________ 8. What interest or estate does the applicant claim therein? _______________ __________________________________________________________________________ 9. What is the value of the interest or estate claimed by the applicant? $__ 10. From whom did the applicant acquire the land? ___________________________ __________________________________________________________________________ 11. Does the applicant claim title by prescription? _________________________ (If so, set forth fully the color of title, if any, under which the prescription is claimed, and state the details of the possession by which it is claimed prescription has ripened. If the color of title consists of one or more instruments of record on the public records of the county, such instruments need not be copied or exhibited to the application otherwise than by giving the name of the grantor and the grantee, the date and nature of the instrument, and a reference to the book and page where recorded.) __________________________________________________________________________ __________________________________________________________________________ 12. Does applicant claim title by a complete chain of title from the state or other original source of title? ___________________________________________ __________________________________________________________________________ 13. Is there a true and correct abstract of applicant's title papers attached hereto? _____________________________________________________________ 14. Do you know, or have information, of any other deed, writing, document, judgment, decree, mortgage, or instrument of any kind not set forth in the abstract which relates to this land or any part thereof, or which might affect the title thereto or some interest therein? If so, state the same. ____ 15. Has the land, or any part thereof, ever been set apart as a homestead or exemption or as dower? If so, state particulars. _____________________________ __________________________________________________________________________ 16. Who is now in possession of the land? ___________________________________ __________________________________________________________________________ 17. Do you know anyone else who claims to be in possession of the land or any part thereof? If so, give name and address. ______________________________ __________________________________________________________________________ 18. Give name and address of each person occupying the land or any part thereof, and state by what right or claim of right such occupancy is held. ___ __________________________________________________________________________ 19. Give the name, residence, and address of each and every person, other than the applicants, who claim any interest, adverse or otherwise, vested or otherwise, in the land or any part thereof, stating the nature of the claim, and if any such persons are under disability of any kind, state the nature of the disability. Disability Nature of Name Residence Address (if any) Claim __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ 20. Give the name, residence, and address of the holder of every known lien, whether considered by the applicant to be valid or not. Nature of Name Residence Address Lien __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ 21. Give the names and addresses of the owners and occupants of all adjoining lands. _____________________________________________________________ __________________________________________________________________________ 22. Is the land subject to any easement, except public highways and railroads in actual operation? If so, state fully. ___________________________ __________________________________________________________________________ __________________________________________________________________________ 23. Give age of applicant. __________________________________________________ 24. Is the applicant male or female? __________; married or single? __________; widow or widower? ____________________________________________ 25. If married, give wife's (or husband's) name, and include her or him in the list of defendants. ______________________________________________________ __________________________________________________________________________ 26. The applicant names as defendants the following persons whose names have been given above: ____________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ and also all other persons "whom it may concern." Wherefore the applicant prays process and judgment accordingly. ___________________________________________________________________ Petitioner's attorney (To be sworn to by each applicant. Verification in case of a corporation may be made by any officer thereof; in case of minor or other persons under disability, by the person filing the petition in his behalf.) I do swear that I have read the foregoing petition, and have examined the schedules thereto attached, and that the same are true to the best of my knowledge and belief, and that nothing has been withheld in the answers which would in anywise affect the title to the land or any interest therein or which would disclose any person claiming an adverse interest, valid or not. I do further swear that I bona fide believe that the applicant is the true owner of the estate he seeks to have registered. ___________________________________________________________________ Petitioner Sworn to and subscribed before me, this ________ day of ________________________, ________. ________________ Notary (If more than one applicant, they may verify jointly or by separate affidavits.) EXHIBIT A (Attach abstract of title)

(Ga. L. 1917, p. 108, § 86; Code 1933, § 60-602; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-222. Process.

The following is prescribed as the form of process to be attached to the petition: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA To the sheriffs of said state and their lawful deputies: The respondents __________________________________________________________ and all other persons whom it may concern are required to show cause before said court, on the ________ day of ________________________, ________, (not less than 40 nor more than 50 days from date of process) why the prayers of the foregoing petition should not be granted, and why the court should not proceed to judgment in such cause. Witness the Honorable ______________, judge of said court, this the ________ day of ________________________, ________. ___________________________________________________________________ Clerk

(Ga. L. 1917, p. 108, § 87; Code 1933, § 60-603; Ga. L. 1999, p. 81, § 44.)

44-2-223. Advertisement.

The advertisement to be inserted in the newspaper in which sheriff's sales of the county are advertised for four insertions in separate weeks should be substantially in the following form: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA In re petition ) Civil action of ______ ) File no. ______ ) To whom it may concern, and to (here insert the names of all respondents, if any, who reside beyond the limits of the state, or whose place of residence is unknown): Take notice that _____________ has filed in said court a petition seeking to register the following lands under the provisions of the Land Registration Law: (Here describe lands). You are warned to show cause to the contrary, if any you have, before said court on the ________ day of ________________________, ________. This ________ day of ________________________, ________. ___________________________________________________________________ Clerk

(Ga. L. 1917, p. 108, § 88; Code 1933, § 60-604; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-224. Acknowledgment of service.

Acknowledgment of service may be made in the following form, provided it is entered on the petition or entitled in the action and is signed in the presence of the judge, the clerk, the examiner, or any other person or official authorized by law to administer oaths, take acknowledgments, or act as a notary public or official witness and is attested by such officer: Due and legal service of the within and foregoing petition for registration is acknowledged. Further service, process, and notice waived, this the ________ day of ________________________, ________. ____________________________________________________________________ In the presence of ______________.

(Ga. L. 1917, p. 108, § 89; Code 1933, § 60-605; Ga. L. 1945, p. 140, § 1; Ga. L. 1999, p. 81, § 44.)

44-2-225. Sheriff's return.

The sheriff's return should be made substantially in the following form and entered on or attached to the petition: STATE OF GEORGIA, ________ COUNTY I have served copies of the within petition and process, or of the summons in substitute therefor, upon the following persons at the time and in the manner stated, as follows: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ I have also gone upon the land and posted in a conspicuous place on the land described herein and upon each separate tract thereof and upon every dwelling house and every building used as a place of business upon said land, a copy of the notice as required by law, and have taken the same into the custody of the court. The following is the name and post office address of each and every person above the age of 14 years actually occupying the premises: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ This ______ day of ________________________, ________. ___________________________________________________________________ Sheriff

(Ga. L. 1917, p. 108, § 90; Code 1933, § 60-606; Ga. L. 1943, p. 326, § 1; Ga. L. 1999, p. 81, § 44.)

44-2-226. Certificate of mailing; entry of such certificate on petition.

The clerk should also enter on the petition a certificate substantially in the following form: I certify that on the ________ day of ________________________, ________, I mailed to each of the following persons a copy of the within petition and process to his post office address as disclosed by the record: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ and that advertisement has been published in accordance with law, a copy of said advertisement being hereto attached. This ________ day of ________________________, ________. ___________________________________________________________________ Clerk

(Ga. L. 1917, p. 108, § 91; Code 1933, § 60-607; Ga. L. 1999, p. 81, § 44.)

44-2-227. Examiner's appointment.

A form reading substantially as follows should be used in appointing examiners: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA In re petition ) Civil action of ________ ) File no. ______ ) ORDER ____________, a competent attorney at law, of good standing in his profession and of at least three years' experience, is hereby appointed an auditor in and for the __________ Judicial Circuit, to discharge the duties of examiner as provided in the Land Registration Law. This appointment is __________ (either general or for a particular case, as the case may be). This ________ day of ________________________, ________. ___________________________________________________________________ Judge, Superior Court

(Ga. L. 1917, p. 108, § 92; Code 1933, § 60-608; Ga. L. 1999, p. 81, § 44.)

44-2-228. Oath of examiner.

The examiner is required to take the following oath, to be filed along with the order of his appointment in the office of the clerk of the superior court of his residence: "I, ____________, do swear that I will faithfully, well, and truly perform the duties of examiner under the Land Registration Law, according to law to the best of my skill and ability. _____________________________________________________________________ Sworn to and subscribed before me, this ________________________, ________. __________________"

(Ga. L. 1917, p. 108, § 93; Code 1933, § 60-609; Ga. L. 1992, p. 6, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-229. Referral to examiner.

Upon the clerk's notifying the judge that a petition has been filed, the judge shall promptly refer the petition to an examiner in substantially the following form: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) ORDER Application having been filed to register _________________________________ ________________________________ land, it is hereby ordered that this matter be and is referred to __________________________, as examiner for proceedings in conformity with the Land Registration Law. This ________ day of ________________________, ________. ____________________________________________________________________ Judge

(Ga. L. 1917, p. 108, § 94; Code 1933, § 60-610; Ga. L. 1999, p. 81, § 44.)

44-2-230. Preliminary report of examiner; schedules.

The following is suggested as the general form of the preliminary report of an examiner: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) PRELIMINARY REPORT Application to register ___________________________________________________ ______________ land having been duly considered, the undersigned, as examiner, makes the following preliminary report: I have examined all records as required by the Land Registration Law. I attach an abstract of the title (Schedule A) as shown on the public records and so far as obtainable from other trustworthy sources. The names and addresses of all persons, so far as I have been able to ascertain, who have any interest in the land, are set out in Schedule B hereto, showing their several apparent or possible interests and indicating upon whom and in what manner service should be made. A like disclosure of all adjoining landowners is set out in Schedule C hereto. I find the following to be a history of the possession ___________________ ______________________________________________________________________ Special attention is called to the following matters: ______________________________________________________________________ ______________________________________________________________________ This ________ day of ________________________, ________. ___________________________________________________________________ Examiner SCHEDULE A (Attach examiner's full abstract) SCHEDULE B Names and addresses of all persons having apparent or possible interests in the land, other than applicants, and indicating upon whom and in what manner further service, if any, should be made _______________________________ ___________________________________________________________________________ ___________________________________________________________________________ SCHEDULE C Names and addresses of all adjoining owners: _____________________________ ___________________________________________________________________________ __________________________________________________________________________

(Ga. L. 1917, p. 108, § 95; Code 1933, § 60-611; Ga. L. 1999, p. 81, § 44.)

44-2-231. Final report of examiner.

The following is suggested as the general form of the examiner's final report: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) FINAL REPORT Application to register ___________________________________________________ ____________________________________________________________ land having been duly considered, the undersigned, as examiner, makes this his final report: The preliminary report filed by the undersigned is made a part hereof, and is correct, except as herein otherwise stated. The following proceedings have occurred before the examiner, and accompanying herewith is a brief (or a stenographic) report of the evidence taken on the hearing: ___________________________________________________________________________ ___________________________________________________________________________ In Exhibit ________, hereto, is a report of the matters ascertained by the independent examination of the examiner. My conclusions of fact are set forth in Exhibit ________ hereto annexed. My conclusions of law are set forth in Exhibit ________ hereto annexed. I find the state of the title to be as follows: __________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ I find that there are liens and encumbrances on the land as follows: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ This ________________________, ________. ____________________________________________________________________ Examiner

(Ga. L. 1917, p. 108, § 96; Code 1933, § 60-612; Ga. L. 1999, p. 81, § 44.)

44-2-232. Decrees of title.

Decrees of title should be rendered in accordance with the following form: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) DECREE OF TITLE The above entitled action coming on to be heard and it appearing to the court that process has been served and notice given and publication made, all in full compliance with the Land Registration Law, and that all the requirements of said Law have been complied with, it is decreed, ordered, and adjudged that the title to the lands involved: (here describe lands) is held and owned as follows: The fee simple belongs to ________________________________________________ ___________________________________________________________________________ subject to the following limitations and conditions: ______________________ ___________________________________________________________________________ It is further ordered and decreed that said lands be and they are hereby brought under the operation and provisions of the Land Registration Law, and the title of the said ________________________________________________________ in and to the estate herein set forth above is confirmed and ordered registered; subject, however, to the following liens and encumbrances: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ and subject also to _______________________________________________________ ___________________________________________________________________________ Let this decree be entered on the minutes of this court and on the register of decrees of title of said county. In open court this ______ day of ________________________, ________. ____________________________________________________________________ Judge

(Ga. L. 1917, p. 108, § 97; Code 1933, § 60-613; Ga. L. 1999, p. 81, § 44.)

44-2-233. Book of decrees; index.

  1. It is contemplated by this article that the book known as the register of decrees of title shall be made up in the following manner:
    1. It shall be of such size that each page may contain a full copy of the decree of title;
    2. Only one decree should be entered on any page;
    3. Each page should have printed thereon the form of the decree of title as prescribed in Code Section 44-2-232 with ample spacing left in the blanks;
    4. At the bottom of the page should be the words:
  2. Even though several separate tracts may be joined in the same application, the judge should render separate decrees as to each tract; and these decrees should be separately entered and given separate registered title numbers. Every certificate of title, owner's certificate, and creditor's certificate must carry on it, in addition to its own certificate number, the registered title number of the decree under which the tract to which it pertains was registered.
  3. A part of the register of decrees of title shall be an alphabetical index thereto which the clerk shall carefully keep. Whenever a decree is entered on the register of decrees of title, the clerk shall immediately index it in the name of the person in whose favor the title is registered under proper alphabetical head, the name being followed by the registered title number. If the decree is in favor of more than one person, it shall be separately indexed under the name of each and every one of them, the name of each of said persons being shown under the proper alphabetical head.

    (Ga. L. 1917, p. 108, § 98; Code 1933, § 60-614; Ga. L. 1999, p. 81, § 44.)

"Entered and registered this ________ day of ________________________, ________, at ____: ____ ____. M. and certificate of title No. ______ issued thereon. ____________________________________________________________________ Clerk" and (5) At the top of the page and preceding the copy of the decree should be the words, "Registered Title No. ______." The first decree entered is numbered "Registered Title No. 1," the second "Registered Title No. 2," and so on in continuous, consecutive order. The registered title number of a registered tract never changes though any number of subsequent certificates may be issued thereon; therefore, the registered title number and the certificate number will usually be different.

RESEARCH REFERENCES

ALR. - Failure properly to index conveyance or mortgage of realty as affecting constructive notice, 63 A.L.R. 1057 .

44-2-234. Title register book; registered title number; index of title register.

  1. It is contemplated by this article that the title register shall be a well-bound book with pages not less than 18 inches wide. It shall be labeled on the back with the words "Title Register" followed by the name of the county. For convenience, additional labels may be used in order to show what certificates are included, for example, "Certificates 1501-2000, inclusive," or other similar information. It shall be printed and ruled in substantially the following form:   CLICK TO VIEW  FORM     CLICK TO VIEW  FORM       (b)  The two pages facing each other on the register shall constitute the original certificate of title when the blanks are duly filled in and signed by the clerk. The first certificate of title in the book should be numbered "Certificate No. 1," the next one "Certificate No. 2," and so on, in continuous, consecutive order. If a new book is opened, the numbering therein should begin with the number next succeeding the last number in the book just completed.

    (c) In registering a certificate of title, in addition to the certificate number, the registered title number should also be inserted. The registered title number is always the same as that which appears on the decree of title, by virtue of which the land to which the certificate relates was originally registered. Therefore, every certificate of title registered in the title register shall bear a different certificate number from every other certificate of title registered therein; but all certificates of title which refer to the same registered tract, no matter how many such certificates may be issued in the course of time, shall bear the same registered title number.

    (d) The clerk shall keep an alphabetical index of the title register. This may most conveniently be kept in a separate book. Whenever a certificate of title is entered in the title register, the clerk shall insert in the index, under proper alphabetical head, the name of the person in whose favor the certificate is registered, the reference to the certificate number, and the reference to the registered title number. Whenever a certificate is entered in the name of more than one person, the name of each shall be likewise alphabetically indexed.

    (Ga. L. 1917, p. 108, § 99; Code 1933, § 60-615; Ga. L. 1999, p. 81, § 44.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 73 et seq.

C.J.S. - 76 C.J.S., Registers of Deeds, § 9 et seq.

ALR. - Right of vendee to record title where vendor to covenants to furnish abstract showing title, 7 A.L.R. 1166 .

44-2-235. Duty of clerk to enter on new certificate all entries and notations of record.

When registering a certificate of title upon a transfer, the clerk shall bring forward and appropriately enter on the new certificate of title all entries and notations appearing on the certificate from which the transfer is made, except such as shall have been canceled. In transcribing entries brought forward, the clerk will note under the column headed "Remarks" against such entries the words "Brought forward."

(Ga. L. 1917, p. 108, § 100; Code 1933, § 60-616.)

44-2-236. Certified copies of certificates of title or entries thereon.

Upon request of any person and the payment of lawful fees, the clerk shall issue a certified copy of any certificate of title or of any entry thereon in like manner as he may issue certified copies of any other public record in his office; but, whenever he does so, he shall plainly mark in large legible letters across the face of the certificate the word "copy." If a certified copy of a canceled certificate or entry is made, in addition to transcribing a copy of the entry of cancellation, the clerk shall also plainly mark the words "canceled certificate" or "canceled entry," as the case may be, across the face of the copy.

(Ga. L. 1917, p. 108, § 101; Code 1933, § 60-617.)

44-2-237. Recordation and notation of plat.

Whenever a plat of the premises which is too large or too intricate for easy transcription on the register of decrees of title or on the certificate of title is a part of the description of the lands or is used to aid description, it shall not be necessary for the clerk to copy such plat on the register of decrees of title or on the certificate of title. In lieu of copying such plat, the clerk shall record it and shall note a reference to the book and page where recorded.

(Ga. L. 1917, p. 108, § 102; Code 1933, § 60-618; Ga. L. 1981, p. 1396, § 3; Ga. L. 1992, p. 6, § 44; Ga. L. 2016, p. 193, § 8/HB 1004.)

The 2016 amendment, effective January 1, 2017, in the second sentence, deleted "in one of the public record books in his office" following "the clerk shall record it", and deleted "its existence together with" following "and shall note"; and deleted the former third sentence, which read: "If the holder of the owner's certificate desires a copy of the plat to be attached as a part of his owner's certificate, the clerk shall make a certified copy and attach it upon payment of the fee provided for in paragraph (2) of subsection (f) of Code Section 15-6-77."

44-2-238. Recordation of lengthy description - Reference on title register; effect.

Whenever, in the registering of any certificate of title or any notation or entry on the title register, it is found that the description of the premises or the portion thereof involved or any other detail in connection with the transaction is too lengthy to be transcribed in full in the proper space on the register, it shall be permissible to record the instrument, document, or writing in which such lengthy detail or description is contained on some public record book of the county and, instead of setting forth the description or other detail, as the case may be, in extenso on the title register, to state it in general terms with the reference for further particulars to the public record where recorded as follows: "For further detail, see Deed Book _____________, page _____________." Such registration shall be adequate to all intents and purposes, and the record thus made on the public record shall be considered as a part of the certificate of title contained on the title register.

(Ga. L. 1917, p. 108, § 103; Code 1933, § 60-619.)

44-2-239. Recordation of lengthy description - Notation on owner's or creditor's certificate; attaching certified copy; fee.

Whenever any of the description or details of a certificate of title on the title register are set out in full in some other record of the clerk's office with reference thereto on the title register as provided in Code Section 44-2-238, like reference shall be made on the owner's certificate and on the creditor's certificate when thereafter issued; but, if the holder of the owner's certificate or creditor's certificate shall so require, the clerk shall make a full and complete copy of the record to which reference is made, certify it as such, and attach it to the owner's certificate or the creditor's certificate, as the case may be. For making and certifying such copy of the recorded document or writing and attaching it to the owner's certificate or creditor's certificate, as the case may be, the clerk shall be paid as provided for in paragraphs (4) and (5) of subsection (g) of Code Section 15-6-77, relating to the certification of records.

(Ga. L. 1917, p. 108, § 104; Code 1933, § 60-620; Ga. L. 1981, p. 1396, § 4; Ga. L. 1992, p. 6, § 44.)

44-2-240. Owner's certificate of title.

  1. The form of the owner's certificate of title shall correspond in general with the certificate of title form except that it shall be headed with the words "Owner's Certificate of Title." It is suggested that it be prepared on paper of suitable size which shall be folded into four pages. The first page shall contain the certificate proper omitting the notations and special entries. The inner pages, pages 2 and 3, shall be ruled and written or printed, preferably the latter, in conformity with the form shown in Code Section 44-2-234 for the printing and ruling of the title register for the entry of transfers, liens, encumbrances, creditors' certificates, and other like matters, these two pages being treated for this purpose as a single sheet so that ample space will thereby be given for the crosswise extension of the entries. The back, or fourth, page shall be endorsed as follows:  OWNER'S CERTIFICATE OF TITLE     Registered Title No. _____________________________________________________     Certificate No. __________________________________________________________     Issued to ________________________________________________________________     __________________________________________________________________________  Georgia, __________________________ County         Entered and Registered (in lieu of certificate No. __________, which has been canceled).        This the ________________ day of ________________________, ________, at ____:____ ____. M.          ____________________________________________________________________ Clerk, Superior Court
  2. In case of the first issuance of the owner's certificate on the granting of a decree of registration, the words shown in parenthesis in the endorsement should be omitted.
  3. It is suggested that convenience will be served by folding the certificate in the manner of folding documents written on legal cap or foolscap paper and by writing or printing the endorsement in the style and manner in which similar endorsements are usually put on legal documents. When printed blanks are prepared for use in this connection, it is also suggested that a blank form of transfer be printed on part of the fourth page other than that part used for the endorsement. However, space should be left on the fourth page for such entries as the clerk may be required to make, from time to time, under this article such as certifying that the certificate is valid with all entries noted to date.

    (Ga. L. 1917, p. 108, § 105; Code 1933, § 60-621; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-241. Transfer of whole of registered estates, undivided interests, divided portions, and to secure debt, with power of sale.

The following are prescribed as the regular forms of transfer, but other forms may be used in accordance with this article: TRANSFER OF WHOLE OF REGISTERED ESTATE In consideration of _______________________________________________________ the undersigned, _________________________________________________________ hereby transfers, sells, and conveys to __________________________ his entire right, title, estate, and interest in the tract of land described in the certificate of title No. ____________, hereto attached, registered as Registered Title No. ____________ in the office of the clerk of the Superior Court of __________________________ County, Georgia. This ____________ day of ________________________, ________. ________________________________ Signed, sealed, and delivered in the presence of: __________________________________ __________________________________ TRANSFER OF UNDIVIDED INTEREST IN REGISTERED ESTATE In consideration of ________________________________, the undersigned, ______________________________________, hereby transfers, sells, and conveys to ____________________________ an undivided __________ interest in the tract of land described in the certificate of title No. ____________ hereto attached, registered as Registered Title No. _____________ in the office of the clerk of the Superior Court of __________________________ County, Georgia. This ____________ day of ________________________, ________. ________________________________ Signed, sealed, and delivered in the presence of: __________________________________ __________________________________ TRANSFER OF DIVIDED PORTION OF A REGISTERED ESTATE In consideration of ________________________________________, the undersigned hereby transfers, sells, and conveys to ______________ his entire right, title, interest, and estate in and to the following lands: __________________________________________________________________________ ________________________________________________________________________, being a divided portion of the tract of land described in the certificate of title No. ____________ hereto attached, registered as Registered Title No. _____________ in the office of the clerk of the Superior Court of __________________ County, Georgia. This ____________ day of ________________________, ________. ________________________________ Signed, sealed, and delivered in the presence of: __________________________________ __________________________________ TRANSFER TO SECURE DEBT, WITH POWER OF SALE To secure a debt payable to _______________________________________________ in the sum of ______________________________________________________________ ____________________________________________________________________________ evidenced as follows: ______________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ the undersigned hereby transfers, sells, and conveys to said _______________ __________________________________________________________________________ all the title of the undersigned in and to the tract of land described in the certificate of title No. ____________, herewith shown, registered as Registered Title No. ____________ in the office of the clerk of the Superior Court of ______________________________ County, Georgia, with power to sell the same after lawful advertisement, without foreclosure, in accordance with the provisions of the Land Registration Law, if any part of said debt is not paid at maturity. This ____________ day of ________________________, ________. ________________________________ Signed, sealed, and delivered in the presence of: __________________________________ __________________________________

(Ga. L. 1917, p. 108, § 107; Code 1933, § 60-622; Ga. L. 1999, p. 81, § 44.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, commas were deleted after "delivered" in 2nd, 3rd, and 4th forms.

44-2-242. Creditor's certificate; endorsement of certificate.

  1. The following is a form of the creditor's certificate referred to in this article:  CREDITOR'S CERTIFICATE  State of Georgia, ____________________ County:  Registered Title No. _____________  Certificate No. ________________        I hereby certify that the title to the estate hereinafter mentioned in the following described land lying in said county, _______________________________   ____________________________________________________________________________   is registered under the provisions of the Land Registration Law and thereby vested in ____________________________________________________________________   ____________________________________________________________________________   as security for a debt created by the holder of the owner's certificate of title to said estate, (here insert name of the holder of the owner's certificate); said debt being particularly described as follows: _____________     __________________________________________________________________________   with power conferred to sell the same after lawful advertisement, without foreclosure, in accordance with the provisions of the Land Registration Law, if any part of said debt is not paid at maturity. The estate in said land so held is as follows: __________________________________________________________   ____________________________________________________________________________   subject to the following limitations, conditions, encumbrances,  etc.,     __________________________________________________________________________   and such other as may be noted hereon.        Witness my hand and seal of office, this __________________ day of ________________________, ________, at _:_ _. M.       _______________________________________________________________________ Clerk, Superior Court, __________________ County

    (Official Seal)

  2. All uncanceled entries appearing on the certificate of title at the time the creditor's certificate is issued shall be noted and entered on the creditor's certificate.
  3. The creditor's certificate shall bear an endorsement on its back in the following form:

    (Ga. L. 1917, p. 108, § 108; Code 1933, § 60-623; Ga. L. 1999, p. 81, § 44; Ga. L. 2000, p. 136, § 44.)

CREDITOR'S CERTIFICATE

Registered Title No. _____________

Certificate No. ________________

On lands registered in the name of ________________________________________ __________________________________________________________________________ Issued to ________________________________________________________________ Georgia, __________________ County. Entered and registered this ________ day of ____________________________, ________, at _:_ _. M. ______________________________________________________________________ Clerk, Superior Court

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, a comma was deleted following "Clerk, Superior Court" at the end of subsection (c).

44-2-243. Transfer of portion or undivided interest to secure debt.

Where only a portion of the registered land or only an undivided interest is transferred to secure a debt, the instrument of transfer and the creditor's certificate may be in the same form as those prescribed in Code Sections 44-2-241 and 44-2-242 with the exception that the portion or the undivided interest shall be distinctly stated.

(Ga. L. 1917, p. 108, § 109; Code 1933, § 60-624.)

44-2-244. Judge's order of transfer.

  1. Where the judge orders a transfer to be made under any of the provisions of this article, the judge's order of transfer shall be in the following form unless the exigencies of the case require a different form:  IN THE SUPERIOR COURT OF ____________ COUNTY STATE OF GEORGIA        )    In re petition        )            Civil action   of ________        )           File no. ______        )   JUDGE'S ORDER OF TRANSFER        For good cause shown to the court, the clerk is directed to cancel the Certificate of Title No. __________, Registered Title No. __________, standing in the name of ______________________________________ on the title register and to register a certificate of title in lieu thereof, as follows: in accordance with the decree of court rendered in the action of ________________________ v. __________________________________ in __________________________ court; and transfer of title is accordingly ordered. You will enter this transfer upon the title register, noting upon the same a reference to the book and page upon which the above-recited order or decree may be found.        This order of transfer shall be effective upon the presentation of the outstanding owner's certificate, which you will cancel. * ____________________     __________________________________________________________________________     __________________________________________________________________________        This ________ day of ________________________, ________.         ______________________________________________________________________ Judge        (*If the court has not been able to require the production of the outstanding owner's certificate, the judge shall erase this sentence from the order and substitute in the blank space below it the following: "You will cause notice to be published, in accordance with the law, that the certificate is canceled.")     (b)  If the exigencies of the case require a variation from the above prescribed form, the clerk shall also record the judge's order on the minutes of the court and, under the appropriate heading in the entry of transfer on the title register, write the words "Special, See Minute Book ________, page ________." If the judge's order of transfer is made without obtaining production of the outstanding owner's certificate, the clerk, in entering the transfer, shall, under the heading "Remarks," write "Owner's certificate not produced, but canceled by publication."

    (Ga. L. 1917, p. 108, § 110; Code 1933, § 60-625; Ga. L. 1999, p. 81, § 44.)

44-2-245. Registration and recordation of mortgages.

  1. The regular form of mortgaging shall be as follows:        The undersigned ______________________________________________________ to      secure the following indebtedness ________________________________________     __________________________________________________________________________     __________________________________________________________________________     mortgages to _____________________________________________________________   the estate, title, and interest of the undersigned in and to all of the tracts of land described in the certificate of title No. ___________________,   herewith shown, registered as Registered Title No. __________ in the office of the clerk of the Superior Court of ________________________________________     County, Georgia.       ________________________________________________________________________        This ________ day of ________________________, ________.   Signed, sealed, and delivered, in the presence of:     __________________________________      __________________________________     __________________________________
  2. If only a part or undivided interest is mortgaged, the word "all" shall be stricken and a particular description of the portion or interest mortgaged shall be inserted.
  3. Mortgages executed pursuant to this Code section may be registered as regular instruments as provided in this article. Mortgages in other forms and with other provisions may be registered but shall also be recorded in accordance with the provisions of this article regulating the registration of irregular instruments.

    (Ga. L. 1917, p. 108, § 111; Code 1933, § 60-626; Ga. L. 1999, p. 81, § 44.)

44-2-246. Notation of delinquent taxes or assessments.

Delinquent taxes and assessments shall be noted on the title register when the officer charged with the collection of taxes files with the clerk a certificate substantially in the following form: NOTATION OF DELINQUENT TAXES I certify that __________________________ (state, county, or city, as the case may be) has a lien for unpaid taxes (or assessments, as the case may be) for the year ________ against the land described in certificate No. __________, Registered Title No. __________, registered in the office of the clerk of the Superior Court of ________________________ County, in the amount of $_____________. The clerk will please note the same on the title register. This ________ day of ________________________, ________. _____________________________________________________________________ Tax Collector

(Ga. L. 1917, p. 108, § 112; Code 1933, § 60-627; Ga. L. 1999, p. 81, § 44.)

44-2-247. Notation of judgment.

The regular form to be used for the notation of a judgment on the title register is as follows: NOTATION OF JUDGMENT To the clerk of the Superior Court, ____________ County, Georgia: Please note on certificate of title No. ____________, Registered Title No. ____________, a judgment issued from _________________________________________ Court of _______________________________________________________ in favor of ________________________ v. ___________________________________________ for the amount of $__________________. This ________ day of ________________________, ________. _____________________________________________________________________

(Ga. L. 1917, p. 108, § 113; Code 1933, § 60-628; Ga. L. 1999, p. 81, § 44.)

44-2-248. Notation of special right; notice of lis pendens; recordation and notation of lengthy descriptions.

  1. The regular form to be used where any person desires a notation to be made of any lien, encumbrance, or special right, other than voluntary transactions and other than those otherwise provided for in this part, is as follows:  REQUEST FOR NOTATIONS OF SPECIAL RIGHT        The undersigned ___________________________________________________________       claims against the land described in certificate No. ____________, Registered Title No. ____________, registered in the office of the clerk of the Superior Court of ________________________________ County, the following lien (encumbrance, equity, or special right, as the case may be):     __________________________________________________________________________   in proof of which reference is had to the following record or court proceeding _________________________________________________________________.        Please note the same upon the register of title accordingly.         ______________________________________________________________________     Sworn to and subscribed before me this     ________ day of ________________________, ________.     __________________
  2. The above form may be used to give notice of a lis pendens.
  3. If the description of the alleged encumbrance, equity, or special right is too lengthy to note with convenience on the blanks in the title register, the request for the notation of the same shall be recorded on the deed book of the county; and the clerk shall register only a general description of it but shall note under the appropriate column heading in the title register the reference "Special, see Deed Book ______________ page __________."

    (Ga. L. 1917, p. 108, § 114; Code 1933, § 60-629; Ga. L. 1982, p. 3, § 44; Ga. L. 1992, p. 6, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-249. Cancellation of creditor's certificate.

The owner of a creditor's certificate may authorize the clerk to register the cancellation thereof by writing thereon "Canceled. The clerk will please cancel the same on the title register" and dating and signing the same in the presence of an officer authorized to attest deeds. If the person owning the creditor's certificate is not the person in whose name it was issued and if the original creditor has not endorsed it in blank, the owner signing the cancellation shall also make an affidavit that he is the owner of the creditor's certificate and entitled to cancel it. The creditor's certificate shall be surrendered to the clerk at the time of the registration of the cancellation.

(Ga. L. 1917, p. 108, § 115; Code 1933, § 60-630.)

44-2-250. Request to cancel entries.

Authority for the clerk to cancel entries of other liens, mortgages, encumbrances, special claims, and like matters may be conferred by the execution by the person in whose favor such matters exist or his personal representative of a request as follows: REQUEST TO CANCEL ENTRY To the Clerk of the Superior Court of _____________ County: You are directed to cancel the entry registered in my favor on certificate of title No. __________, Registered Title No. __________, claiming the following lien (encumbrance or special right, as the case may be) __________________________________________________________________________ This ________ day of ________________________, ________. ______________________________________________________________________

(Ga. L. 1917, p. 108, § 116; Code 1933, § 60-631; Ga. L. 1999, p. 81, § 44.)

44-2-251. Registration and notation of other voluntary transactions.

Reserved. Repealed by Ga. L. 1989, p. 563, § 8, effective April 3, 1989.

Editor's notes. - This Code section was based on Ga. L. 1917, p. 108, § 117; Code 1933, § 60-632; Ga. L. 1982, p. 3, § 44.

44-2-252. Updating entries and notations on owner's certificate; clerk's endorsement.

The holder of an uncanceled owner's certificate of title may at any time present it to the clerk and have the clerk enter on the owner's certificate all entries and notations of every kind which appear on the certificate of title which have not already been entered on the owner's certificate. The clerk shall thereupon endorse on the owner's certificate the words "Valid, with all entries noted to this date. This ________ day of ________________________, ________, at _: _ _. M." and shall officially sign the endorsement.

(Ga. L. 1917, p. 108, § 118; Code 1933, § 60-633; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-253. Filing cases; method of filing papers relating to registered lands.

The county governing authority shall furnish the clerk with the necessary durable filing cases. He shall carefully number and file away all papers relating to and dealing with registered lands. All the papers relating to each registered title shall be filed together and separately from the papers relating to any other registered title, in such regular consecutive numerical arrangement as to make them easily accessible at all times.

(Ga. L. 1917, p. 108, § 119; Code 1933, § 60-634.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 67.

C.J.S. - 76 C.J.S., Registers of Deeds, § 9 et seq.

CHAPTER 3 REGULATION OF SPECIALIZED LAND TRANSACTIONS

Georgia Land Sales Act.

Sales of Subdivided Out-of-State Lands.

Condominiums.

Cemeteries.

Time-Share Projects and Programs.

G ENERAL PROVISIONS .

A DMINISTRATION .

D EVELOPERS AND EXCHANGE COMPANIES .

A DVERTISING .

F INANCING BY DEVELOPER .

R EGISTRATION .

M ISCELLANEOUS .

Property Owners' Associations.

Specialized Land Transactions.

Cross references. - Real estate brokers and salespersons, Ch. 40, T. 43.

Law reviews. - For article, "Hazardous Waste Issues in Real Estate Transactions," see 38 Mercer L. Rev. 581 (1987).

RESEARCH REFERENCES

ALR. - Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property "as is" or in its existing condition, 8 A.L.R.5th 312.

ARTICLE 1 GEORGIA LAND SALES ACT

Cross references. - Georgia Uniform Securities, Ch. 5, T. 10.

Editor's notes. - Georgia Laws 1982, p. 1431, § 1, effective November 1, 1982, substituted this article for former Article 1 of this chapter, relating to sales in this state of subdivided lands, and for former Article 2 of this chapter, relating to sales of subdivided out-of-state lands.

Law reviews. - For note on 1995 amendments of sections in this article, see 12 Ga. St. U.L. Rev. 321 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the provisions, opinions rendered under prior law and under Ga. L. 1971, p. 856 and Ga. L. 1972, p. 638, are included in the annotations for this Code section.

Sale of interest in land is sale of real property. - Contract for the sale and purchase of an interest in land is an agreement for the sale of real property. 1954-56 Op. Att'y Gen. p. 596. (decided under prior law).

Out-of-state developer. - An out-of-state developer who had filed and received approval to sell or offer to sell lands located outside the State of Georgia to Georgia residents prior to July 1, 1973, and now wishes to file a consolidation of the same property or subdivision, would be required to file under and meet the requirements of former Arts. 1 and 2 of this chapter. 1973 Op. Att'y Gen. No. 73-157 (decided under Ga. L. 1971, p. 856 and Ga. L. 1972, p. 638).

Corporation meeting the licensing requirements of this article must also qualify to do business under T. 14. 1973 Op. Att'y Gen. No. 73-140 (decided under Ga. L. 1971, p. 856 and Ga. L. 1972, p. 638).

Unless exempted by § 14-2-1501 . - Foreign corporation that is licensed under the Out of State Land Sales Act, G.L. 1971, p. 856, is not required to comply with the provisions of former Code 1933, § 22-1401(a) (see now O.C.G.A § 14-2-1501 ) if the corporation would be otherwise exempt from that section pursuant to former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501). 1974 Op. Att'y Gen. No. 74-49 (decided under Ga. L. 1971, p. 856 and Ga. L. 1972, p. 638).

RESEARCH REFERENCES

ALR. - Failure to procure occupational or business license or permit as affecting validity or enforceability of contract, 30 A.L.R. 834 ; 42 A.L.R. 1226 ; 118 A.L.R. 646 .

Duty of vendor as to abstract of title, 52 A.L.R. 1460 .

Constitutionality, construction, and application of statutes regulating the subdivision or development of land for sale or lease in lots or parcels, 122 A.L.R. 501 .

Effect of action as an election of remedy or choice of substantive rights in case of fraud in sale of property, 123 A.L.R. 378 .

Real estate broker's right to commission on sale, exchange, or lease of property listed without statement of price or other terms, 169 A.L.R. 380 .

Venue of damage action for breach of real-estate sales contract, 8 A.L.R.3d 489.

Variance between offer and acceptance in regard to title as affecting consummation of contract for sale of real property, 16 A.L.R.3d 1424.

Rights and liabilities of parties to executory contract for sale of land taken by eminent domain, 27 A.L.R.3d 572.

Mechanic's lien based on contract with vendor pending executory contract for sale of property as affecting purchaser's interest, 50 A.L.R.3d 944.

Enforceability, landowner, of subdivision developer's oral promise to construct or improve roads, 41 A.L.R.4th 573.

44-3-1. Short title.

This article shall be known and may be cited as the "Georgia Land Sales Act."

(Code 1981, § 44-3-1 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1990, p. 606, § 1; Ga. L. 1995, p. 993, § 1.)

JUDICIAL DECISIONS

Applicability. - Trial court properly granted summary judgment against a home buyer's claim that the sale of the property at issue failed to comply with the Georgia Land Sales Act (Act), O.C.G.A. § 44-3-1 et seq., as the property contained a house suitable for occupancy at the time of the sale; further, despite the buyer's argument that the statutory exemption under O.C.G.A. § 44-3-4(2) did not apply to residential property, giving the words of the exemption their plain and ordinary meaning, the exemption had to be read as excluding from the Act property upon which either a commercial building, an industrial building, a condominium, a shopping center, a house, or an apartment house was situated. Mancuso v. Steyaard, 280 Ga. App. 300 , 640 S.E.2d 50 (2006).

44-3-2. Definitions.

As used in this article, the term:

  1. "Agent" means any person who represents, or acts for or on behalf of, a developer in selling or leasing or offering to sell or lease any lot or lots in a subdivision but shall not include an attorney at law whose representation of another person consists of rendering legal services.
  2. "Blanket encumbrance" means:
    1. Any deed to secure debt, trust deed, mortgage, mechanic's lien, or any other lien or financial encumbrance securing or evidencing money debt and affecting subdivided land or affecting more than one lot or parcel of subdivided land; or
    2. Any agreement affecting more than one such lot or parcel by which the subdivider holds such subdivided land under an option, contract to purchase, or trust agreement; provided, however, that taxes and assessments levied by public authority are not deemed to be encumbrances within the meaning of this paragraph.
  3. "Business day" means any calendar day except Sunday or any national legal public holiday.
  4. "Common promotional plan" means a plan undertaken by a single developer or a group of developers acting in concert to offer lots for sale or lease; where such land is offered for sale by such a developer or group of developers acting in concert and, where such land is contiguous or known, designated, or advertised as a common unit or by a common name, such land shall be presumed, without regard to the number of lots covered by each individual offering, as being offered for sale or lease as part of a common promotional plan.
  5. "Conspicuous statement" means a statement in boldface and conspicuous type which shall be a type size of at least ten points. Such statement shall always be shown larger than all other nonconspicuous statements in the body of the document in which it is required.
  6. "Developer" or "subdivider" or "owner" means any person who, directly or indirectly, sells or leases, or offers to sell or lease, or advertises for sale or lease any lots in a subdivision.
  7. "Disposition" or "dispose of" means any sale, exchange, lease, assignment, award by lottery, or other transaction designed to convey an interest in a subdivision or parcel, lot, or unit thereof, if undertaken for gain or profit.
  8. "Offer" means every inducement, solicitation, or attempt to bring about a disposition.
  9. "Person" means an individual, firm, company, association, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association or organization, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.

    (9.1) "Property report" means a written statement given to prospective purchasers by the developer or the developer's agent disclosing such information about the subdivision as required by this article.

  10. "Purchaser" means a person other than a developer or lender who acquires an interest in any lot, parcel, or unit in a subdivision.
  11. "Sale" means every sale, lease, assignment, award by lottery, solicitation, or offer to do any of the foregoing concerning a subdivision, if undertaken for gain or profit.
  12. "Subdivision" or "subdivided land" means:
    1. Any contiguous land which is divided or is proposed to be divided for the purpose of disposition into 50 or more lots, parcels, units, or interests; or
    2. Any land, whether contiguous or not, which is divided or proposed to be divided into 50 or more lots, parcels, units, or interests which are offered as a part of a common promotional plan. (Ga. L. 1971, p. 856, § 1; Ga. L. 1972, p. 638, § 1; Ga. L. 1975, p. 484, § 1; Code 1981, §§ 44-3-2 , 44-3-41; Ga. L. 1982, p. 3, § 44; Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Ga. L. 1995, p. 993, § 1.)

JUDICIAL DECISIONS

Cited in Screamer Mt. Dev., Inc. v. Garner, 234 Ga. 590 , 216 S.E.2d 801 (1975) (decided under Ga. L. 1971, p. 856, § 1).

RESEARCH REFERENCES

Am. Jur. 2d. - 64 Am. Jur. 2d, Public Securities and Obligations, §§ 2, 3. 66 Am. Jur. 2d, Registration of Land Titles, § 5.

44-3-3. Registration statement; accompanying documents; material changes; property report; lots or parcels subject to blanket encumbrances; records subject to inspection by purchaser; copy of property report to be given to prospective purchasers; sales contract; amendments to report.

    1. It shall be unlawful for any person to offer for sale or to sell any subdivided land to any person in this state unless such offering complies with this article or is exempt under Code Section 44-3-4. Any person offering to sell any subdivided land shall provide each prospective purchaser a property report containing the following:
      1. Information about the subdivider to include the name, street address, form of organization, and telephone number of the subdivider; the state or foreign jurisdiction in which the subdivider is organized and the date of organization; a statement of authorization to do business in this state, if the subdivider is a foreign corporation; the name and address of the subdivider's resident agent; the name and address of the person to whom correspondence concerning the subdivider should be addressed; the name, address, and telephone number of the person or persons who are in charge of the subdivider's sales in this state; and a statement indicating where the subdivider's records are located;
      2. Information about the subdivided land to include the total acreage in the subdivision as a whole, including land held for future expansion; the number of lots, parcels, or tracts included in the filing; the number of acres in the filing; the size of the smallest parcel to be offered for sale; the county and state in which the land is located; the name of the nearest incorporated town; and the route and distance from the nearest incorporated town to the land;
      3. Information about the title of the subdivided land to include the name, address, and telephone number of the record titleholder;
      4. Information about any existing or contemplated future improvements to include statements of the condition of drainage control systems, streets, roads, sewage disposal facilities, sidewalks, electrical services, telephone connections, water supply, gas supply, clubhouses, golf courses, and other recreational facilities; a statement as to whether any performance bonds or other obligations have been posted with any public authority to assure the completion of any improvements; a statement as to whether the county or city wherein the land lies has agreed to accept maintenance of any improvements other than recreational facilities; a statement as to whether any contracts have been made with any public utility for the installation of any improvements; a statement as to the existence or contemplated future existence of any improvement maintenance charge; and a statement as to whether all improvements promised to purchasers are included in the sales contracts;
      5. The provisions of any zoning ordinances and regulations affecting the subdivided land and each lot or unit thereof;
      6. A statement of all existing taxes or assessments affecting the subdivided land;
      7. The terms and conditions of sales of the subdivided land and a statement which declares any sums which purchasers will be required to pay other than the actual purchase price, with interest, and any taxes or assessments validly imposed by any governmental authority;
      8. A statement which indicates whether the subdivision has been approved or disapproved for loans by any lending institutions or agencies;
      9. The names of the governmental authorities or private entities which will provide police protection, fire protection, and garbage collection;
      10. The name and address of the person who prepared the registration statement;
      11. A statement which indicates the use for which the property is offered;
      12. The estimated costs, dates of completion, and the party responsible for the construction and maintenance of all existing and proposed improvements which are referred to in connection with the offering or disposition of any interest in the subdivided land including such party's name and address;
      13. A conspicuous statement on the top two-thirds of the front cover of the property report which reads as follows:

        "YOU MAY CANCEL WITHOUT PENALTY OR OBLIGATION ANY SALES AGREEMENT WHICH YOU HAVE SIGNED WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING ANY SALES AGREEMENT AND YOU ARE ENTITLED TO RECEIVE A REFUND. IF THIS PROPERTY REPORT WAS NOT GIVEN TO YOU BEFORE YOU SIGNED ANY SALES AGREEMENT, YOU MAY CANCEL THE SALES AGREEMENT WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER YOUR RECEIPT OF THIS PROPERTY REPORT AND YOU ARE ENTITLED TO RECEIVE A REFUND. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL. IF YOU DECIDE TO CANCEL A SALES AGREEMENT, YOU MUST NOTIFY THE DEVELOPER IN WRITING WITHIN THE CANCELLATION PERIOD OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, TO (insert the name and address of the developer or the developer's agent). YOUR NOTICE WILL BE EFFECTIVE ON THE DATE YOU MAIL IT."

      14. A conspicuous statement on the bottom third of the front cover of the property report which reads as follows:

        "THE PURCHASER SHOULD READ THIS DOCUMENT BEFORE SIGNING ANYTHING";

        1. Except as provided in division (ii) of this subparagraph, a conspicuous statement which reads as follows:

          "THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE SUPERIOR COURT OF THE COUNTY WHEREIN THE PROPERTY IS LOCATED."

        2. If the subdivision is located outside the State of Georgia, then the conspicuous statement must read as follows:

          "THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE APPROPRIATE LAND RECORDS OF THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED."

    2. Every subdivider shall make available at the project location to every purchaser for inspection thereof the following documents:
      1. A legal description of the subdivided land;
      2. A general map, drawn to scale, showing the total subdivided land area and its relation to the existing streets, roads, waterways, schools, churches, shopping centers, and bus and rail transportation in the immediate vicinity and showing all lands reserved for future expansion, if any;
      3. A copy of the conveyances by which the subdivider or owner acquired title to the land, with such copy bearing the public record book and page number;
      4. A copy of all instruments presently creating liens, mortgages, encumbrances, reservations, or defects upon the use of title of the subdivided land included in the filing;
      5. A copy of the title insurance policy or an attorney's title opinion for the subdivided land, issued within 30 days of the date of submission of the registration statement;
      6. A copy of each deed restriction, if any;
      7. A copy of the purchase agreement to be employed in the sales program;
      8. A copy of the deed to be employed in the sales program;
      9. Statements from the appropriate governmental agencies approving the installation of the improvements enumerated in subparagraph (D) of paragraph (1) of this subsection, including, but not limited to, a statement of approval from the state water quality control board concerning the sewage disposal facilities and siltation;
      10. A statement which indicates how streets and other public places in the subdivided land are to be maintained;
      11. A copy of any contract or franchise with a public utility company, if any;
      12. A copy of a plat of the subdivided land approved by the appropriate specified governmental agency and recorded in the appropriate specified public record book, with such copy bearing the public record book and page number;
      13. A copy of any performance bonds or agreements with the public authorities guaranteeing completion;
      14. A phased development schedule for all improvements promised by the subdivider and not completed, showing each type of improvement and the month and year of the start of the improvement and the proposed completion;
      15. A statement by the subdivider of any additional and material facts that should be called to the attention of the purchaser;
      16. If the county or municipality in which the subdivision is located has a planning and zoning ordinance in effect, a certificate of approval or compliance from the local governing authority stating that the subdivision is in compliance with the applicable ordinance or, if the county or municipality in which the subdivision is located has no planning and zoning ordinance in effect, a certificate of approval from the appropriate regional commission; and
      17. A statement of the terms of payment.
  1. The purchaser shall be informed by the subdivider of all material changes with respect to the subdivided land.
  2. The subdivider must update the property report whenever any material change occurs.
  3. The property report shall not be used for advertising purposes unless the report is used in its entirety. No portion of the report shall be underscored, italicized, or printed in larger or heavier type than the balance of the report unless specifically required by law or by this article or such emphasis is intended to call to a prospective purchaser's attention some risk or warning not otherwise readily observable.
  4. Where lots or parcels within a subdivision are subject to a blanket encumbrance, the developer shall ensure that such blanket encumbrance contains provisions evidencing the subordination of the lien of the holder or holders of the blanket encumbrance to the rights of those persons purchasing from the subdivider or provisions evidencing that the subdivider is able to secure releases from such blanket encumbrance with respect to the property.
  5. A copy of the instruments executed in connection with the sale of parcels within a subdivision shall be kept available by the subdivider and subject to inspection by the purchaser for a period of three years. The purchaser shall be notified of any change affecting the location of the records.
    1. The subdivider shall cause a copy of the property report to be given to each prospective purchaser prior to the execution of any binding contract or agreement for the sale of any lot or parcel in a subdivision. If such a report is not given at least 48 hours prior to such execution, the purchaser may rescind the contract by written notice to the seller until midnight of the seventh day, Sundays and holidays excepted, following the signing of such contract or agreement. A receipt in duplicate shall be taken from each purchaser evidencing compliance with this provision. Any such election by the purchaser to void the contract or agreement must be made within seven days, Sundays and holidays excepted, following the signing of such contract or agreement. Receipts taken for any published report shall be kept on file for three years from the date the receipt is taken. If such a report is never given prior to or after the execution of any binding contract or agreement for sale, the purchaser may have rights exercisable under Code Section 44-3-8 in addition to the right of rescission given in this paragraph.
    2. The receipt in duplicate required by this subsection must be signed by the purchaser upon receipt of a property report and must contain the following language:

      I hereby acknowledge that I have received the property report of (insert name of subdivision) on (insert date) at (time). If I receive the property report less than 48 hours prior to signing any contract or agreement, I understand that my right to cancel that contract or agreement is midnight of the seventh day, Sundays and holidays excepted, following the signing of such contract or agreement. I understand that I must notify the developer or the developer's agent in writing within the cancellation period of my intent to cancel by sending notice by certified mail or statutory overnight delivery, return receipt requested, to (insert name and address of developer or developer's agent). Notice will be effective on the date that it is mailed.

    1. Every sales contract relating to the purchase of real property in a subdivision shall state clearly the legal description of the parcel being sold, the principal balance of the purchase price which is outstanding at the date of the sales contract after full credit has been given for the down payment, and the terms of the sales contract.
    2. Every sales contract relating to the purchase of real property in a subdivision shall provide that the purchaser shall receive a warranty deed to the property together with a copy of any purchase money deed to secure debt or purchase money mortgage as may be specified in the sales contract within not more than 180 days from the date of execution of the contract; provided, however, that, in the case of contracts to purchase dwelling units not yet completed, the warranty deed need not be delivered until 180 days after such completion.
  6. The developer must make any changes in the property report which are necessary to assure its truthfulness and accuracy at all times.
  7. When a subdivider offers additional subdivided land for sale, the subdivider shall amend the property report to include the additional subdivided land. (Ga. L. 1971, p. 856, § 8; Ga. L. 1972, p. 638, § 3; Ga. L. 1975, p. 484, §§ 2, 3, 6; Code 1981, §§ 44-3-4 , 44-3-5 , 44-3-4 8; Ga. L. 1982, p. 3, § 44; Code 1981, § 44-3-3 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1984, p. 22, § 44; Ga. L. 1986, p. 10, § 44; Ga. L. 1987, p. 3, § 44; Ga. L. 1989, p. 1317, § 6.18; Ga. L. 1990, p. 606, § 1; Ga. L. 1995, p. 993, § 1; Ga. L. 1996, p. 6, § 44; Ga. L. 2000, p. 1589, § 3; Ga. L. 2008, p. 181, § 17/HB 1216.)

The 2008 amendment, effective July 1, 2009, substituted "regional commission" for "regional development center" near the end of subparagraph (a)(2)(P).

Cross references. - Approval of proposed subdivisions by Department of Transportation, § 32-6-150 et seq.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Certainty requirement for sales contract. - See Allen v. Youngblood, 231 Ga. 191 , 200 S.E.2d 758 (1973); Buckner v. Mallett, 245 Ga. 245 , 264 S.E.2d 182 (1980); McMichael Realty & Ins. Agency, Inc. v. Tysinger, 155 Ga. App. 131 , 270 S.E.2d 88 (1980).

Construction. - Trial court properly granted summary judgment against a home buyer's claim that the sale of the property at issue failed to comply with the Georgia Land Sales Act (Act), O.C.G.A. § 44-3-1 et seq., as the property contained a house suitable for occupancy at the time of the sale; further, despite the buyer's argument that the statutory exemption under O.C.G.A. § 44-3-4(2) did not apply to residential property, giving the words of the exemption their plain and ordinary meaning, the exemption had to be read as excluding from the Act property upon which either a commercial building, an industrial building, a condominium, a shopping center, a house, or an apartment house was situated. Mancuso v. Steyaard, 280 Ga. App. 300 , 640 S.E.2d 50 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Former law construed. - For opinions construing the Georgia Land Sales Act of 1972, see 1973 Op. Att'y Gen. No. 73-157 (annual renewal fee); 1974 Op. Att'y Gen. No. 74-60 (annual renewal fee); 1976 Op. Att'y Gen. No. 76-82 (reporting of material change and liability for payment of annual renewal fee); 1979 Op. Att'y Gen. No. 79-76 (security requirement).

RESEARCH REFERENCES

Am. Jur. 2d. - 17A Am. Jur. 2d, Contracts, § 181 et seq. 66 Am. Jur. 2d, Registration of Land Titles, § 11. 82 Am. Jur. 2d, Zoning and Planning, § 118 et seq. 69 Am. Jur. 2d, Securities Regulation - State, §§ 1 et seq., 12, 25 et seq., 77 et seq., 152. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 62.

C.J.S. - 17 C.J.S., Contracts, § 66 et seq. 79 C.J.S. Supp., Securities Regulation, §§ 245 et seq., 291 et seq., 297, 298, 302, 304. 101A C.J.S., Zoning and Land Planning, § 252 et seq. 81A C.J.S., States, § 244.

ALR. - Duty of purchaser of real property to disclose to the vendor facts or prospects affecting the value of the property, 56 A.L.R. 429 .

Vendee in possession under land contract as owner of crops planted or growing at time of default, 95 A.L.R. 1127 .

Duty of vendor of real property to disclose to purchaser condition of building thereon which affects health or safety of persons using same, 141 A.L.R. 967 .

Location of land as governing venue of action for damages for fraud in sale of real property, 163 A.L.R. 1312 .

Brokers' bought and sold notes as constituting the contract between buyer and seller, 169 A.L.R. 197 .

Specific performance of contract for sale of real property as affected by provision making it conditional upon purchaser's obtaining loan, 5 A.L.R.2d 287.

Joining in instrument as ratification of or estoppel as to prior ineffective instrument affecting real property, 7 A.L.R.2d 294.

Rights as between vendor and vendee under land contract in respect of interest, 25 A.L.R.2d 951.

Sufficiency, under the statute of frauds, of description or designation of land in contract or memorandum of sale which gives right to select the tract to be conveyed, 46 A.L.R.2d 894.

Effect of failure to contract for sale or exchange of real estate to specify time for giving of possession, 56 A.L.R.2d 1272.

Venue of action for rescission or cancellation of contract relating to interests in land, 77 A.L.R.2d 1014.

Failure of vendor to comply with statute or ordinance requiring approval or recording of plat prior to conveyance of property as rendering sale void or voidable, 77 A.L.R.3d 1058.

Validity and construction of condominium bylaws or regulations placing special regulations, burdens, or restrictions on nonresident unit owners, 76 A.L.R.4th 295.

Vendor's obligation to disclose to purchaser of land presence of contamination from hazardous substances or wastes, 12 A.L.R.5th 630.

44-3-4. Exemptions from Code Section 44-3-3.

Unless the method of sale is adopted for the purpose of evasion of this article or of the federal Interstate Land Sales Full Disclosure Act, the provisions of Code Section 44-3-3 shall not apply to offers or dispositions in an interest in land:

  1. By a purchaser of any subdivision, lot, parcel, or unit thereof for his or her own account in a single or isolated transaction;
  2. On which there is a commercial or industrial building, condominium, shopping center, house, or apartment house; or as to which there is a contractual obligation on the part of the subdivider to construct such a building within two years from date of disposition; or the sale or lease of which land is restricted by zoning ordinance, covenant, or other legally enforceable means to commercial or nonresidential purposes; or the sale or lease of which land is pursuant to a plan of development for commercial or nonresidential purposes;
  3. As cemetery lots or interests;
  4. Where the plan of sale for a subdivision is to dispose of all the interests to ten or fewer persons;
  5. Where each lot, parcel, or unit being offered or disposed of in any subdivision is five acres or more in size;
  6. To any person who is engaged in the business of the construction of residential, commercial, or industrial buildings for disposition;
  7. Where at least 95 percent of the lots or parcels of such subdivision are to be sold or leased only to persons who acquire such lots or parcels for the purpose of engaging in the business of constructing residences;
  8. Made pursuant to the order of any court of this state;
  9. Made by or to any government or government agency;
  10. Made as evidence of indebtedness secured by way of any deed to secure debt, mortgage, or deed of trust of real estate;
  11. As securities or units of interest issued by an investment trust regulated under the laws of the State of Georgia;
  12. Registered under the provisions of the federal Interstate Land Sales Full Disclosure Act;
  13. Of lots, parcels, or units contained in a recorded subdivision plat, if all of the following conditions exist:
    1. Each lot, parcel, or unit is situated on an existing paved and dedicated road or street constructed to the specifications of the board of county commissioners of the county or the governing body of the municipality, which board or governing body has voluntarily agreed to accept such road or street for maintenance and, if a waiting period is required, adequate assurances have been established with the county or municipality;
    2. The subdivision has drainage structures and fill necessary to prevent flooding, which structures and fill have been approved by the board of county commissioners of the county or the governing body of the municipality;
    3. Electric power is available at or near each lot, parcel, or unit;
    4. Domestic water supply and sanitary sewage disposal meeting the requirements of the applicable governmental authority are available at or near each lot, parcel, or unit;
    5. The subdivider is at all times prepared to convey title to the purchaser by general warranty deed unencumbered by any mortgages, deeds to secure debt, or other liens; and
    6. All promised improvements and amenities are complete;
  14. Of lots, parcels, or units contained in a subdivision plat that has been accepted by the board of county commissioners and properly recorded where:
    1. Each lot, parcel, or unit is situated on a road dedicated or approved by the board of county commissioners and arrangements acceptable to the commission have been made for the permanent maintenance of such roads;
    2. All promised improvements and amenities are complete;
    3. The promotional plan of sale is directed only to bona fide residents of this state whose primary residence is or will be located in the county in which the lots are platted of record;
    4. The method of sale is by cash or deed and first mortgage or deed to secure debt with all funds escrowed in this state prior to closing. Closing shall occur within 180 days after execution of the contract for purchase, at which time the purchaser shall receive a general warranty deed unencumbered by any mortgages or other liens except the mortgage or deed to secure debt given by the purchaser; and
    5. The purchaser has inspected the property to be purchased prior to the execution of the purchase contract and has so certified in writing;
  15. Where not more than 150 lots, parcels, units, or interests are offered for sale; or
  16. Where no representations, promises, or agreements are made that any improvements or amenities will be provided in the property by the subdivider but rather that any improvements or amenities will be furnished by the purchaser. (Ga. L. 1971, p. 856, § 2; Ga. L. 1972, p. 638, § 2; Code 1981, §§ 44-3-3 , 44-3-4 2; Code 1981, § 44-3-4 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Ga. L. 1995, p. 993, § 1.)

JUDICIAL DECISIONS

Application in "single or isolated transaction." - See Screamer Mt. Dev., Inc. v. Garner, 234 Ga. 590 , 216 S.E.2d 801 (1975).

Construction. - Trial court properly granted summary judgment against a home buyer's claim that the sale of the property at issue failed to comply with the Georgia Land Sales Act (Act), O.C.G.A. § 44-3-1 et seq., as the property contained a house suitable for occupancy at the time of the sale; further, despite the buyer's argument that the statutory exemption under O.C.G.A. § 44-3-4(2) did not apply to residential property, giving the words of the exemption their plain and ordinary meaning, the exemption had to be read as excluding from the Act property upon which either a commercial building, an industrial building, a condominium, a shopping center, a house, or an apartment house was situated. Mancuso v. Steyaard, 280 Ga. App. 300 , 640 S.E.2d 50 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 15. 69 Am. Jur. 2d, Securities Regulation - State, §§ 79-85.

C.J.S. - 79 C.J.S., Securities Regulation, §§ 254, 260.

44-3-4.1. Fees and expenses of commission.

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-4.1 , enacted by Ga. L. 1990, p. 606, § 1.

44-3-5. Violations of article.

  1. It shall be unlawful for any person:
    1. To offer to sell or to sell any subdivided land in violation of any provision of this article;
    2. To offer to sell or to sell any subdivided land by means of any oral or written untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made in the light of the circumstances under which they are made not misleading, the purchaser not knowing of the untruth or omission, if such person shall not sustain the burden of proof that such person did not know and, in the exercise of reasonable care, could not have known of the untruth or omission; or
    3. To offer to sell or to sell any subdivided land by means of any property report except a property report which complies with this article unless the offer of disposition of an interest in land is exempt from the provisions of Code Section 44-3-3 pursuant to Code Section 44-3-4.
  2. It shall be unlawful for any person to make to any prospective purchaser any representation that any federal, state, county, or municipal agency, board, or commission has passed judgment in any way upon the truthfulness, completeness, or accuracy of a property report or upon the merits of such land, or has recommended or given approval to such land or transaction.
  3. It shall be unlawful for any person knowingly to cause to be made, in any document used under this article, any statement which is, at the time it is made and in light of the circumstances under which it is made, false or misleading in any material respect.
  4. It shall be unlawful for any person in connection with the offer, sale, or purchase of any subdivided land, directly or indirectly:
    1. To employ any device, scheme, or artifice to defraud; or
    2. To engage in any transaction, act, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser or seller. (Ga. L. 1971, p. 856, § 7; Code 1981, § 44-3-47; Code 1981, § 44-3-8 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1988, p. 13, § 44; Ga. L. 1989, p. 14, § 44; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-5 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, repealed former Code Section 44-3-5 , relating to stop orders with respect to registration, notice of the stop order, summary postponement or suspension pending outcome of the proceeding, when the summary postponement or suspension is effective, and vacation or modification of the stop order, and renumbered former Code Section 44-3-8 as Code Section 44-3-5 , effective July 1, 1995. Former Code Section 44-3-5 was based on Code 1981, § 44-3-5, enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1.

RESEARCH REFERENCES

C.J.S. - 79 C.J.S., Securities Regulation, § 345 et seq.

44-3-6. Order prohibiting act, practice, or transaction in violation of article; injunctive relief.

  1. Whenever it appears to the district attorney or the Attorney General, either upon complaint or otherwise, that any person has engaged in, is engaging in, or is about to engage in any act, practice, or transaction which is prohibited by this article, the district attorney or the Attorney General, or both, may in their discretion apply to any court of competent jurisdiction in this state including the Superior Court of Fulton County for an injunction restraining such person and that person's agents, employees, partners, officers, and directors from continuing such act, practice, or transaction or from doing any acts in furtherance thereof and for the appointment of a receiver or an auditor and such other and further relief as the facts may warrant.
  2. In any proceedings for an injunction, the district attorney or the Attorney General may apply for and be entitled to have issued the court's subpoena requiring:
    1. The immediate appearance of any defendant and that defendant's agents, employees, partners, officers, or directors; and
    2. The production of such documents, books, and records as may appear necessary for the hearing upon the petition for an injunction.
  3. Upon proof of any of the offenses described in this Code section, the court may grant such injunction and appoint a receiver or an auditor and issue such other orders for the protection of purchasers as the facts may warrant. (Code 1981, § 44-3-9 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1986, p. 10, § 44; Ga. L. 1990, p. 606, § 1; Ga. L. 1991, p. 94, § 44; Code 1981, § 44-3-6 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, repealed former Code Section 44-3-6 , relating to administration of article by commission and real estate commissioner and renumbered former Code Section 44-3-9 as Code Section 44-3-6 , effective July 1, 1995. Former Code Section 44-3-6 was based on Ga. L. 1971, p. 856, § 12; Ga. L. 1972, p. 638, § 12; Code 1981, §§ 44-3-23, 44-3-50; Code 1981, § 44-3-6, enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1.

OPINIONS OF THE ATTORNEY GENERAL

Liability for payment of annual renewal fee under Georgia Land Sales Act of 1972, see Op. Att'y Gen. No. 76-82.

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Securities Regulation - State, § 86 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 62.

C.J.S. - 79 C.J.S., Securities Regulation, § 335 et seq. 81A C.J.S., States, § 252.

ALR. - Recovery back of money paid to unlicensed person required by law to have occupational or business license or permit to make contract, 74 A.L.R.3d 637.

44-3-7. Willful violation of article; effect on statutory or common-law right to punish violations; effect of article on Attorney General.

  1. Except as provided in subsection (b) of this Code section, any person who shall willfully violate any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than $1,000.00 or imprisonment not to exceed 12 months, or both.
  2. Any person who shall willfully violate paragraph (2) of subsection (a) of Code Section 44-3-5 or subsection (d) of Code Section 44-3-5 shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not less than one and not more than five years, or both.
  3. Nothing in this article shall limit any statutory or common-law right of the state to punish any person for violation of any provision of any law.
  4. Nothing in this article shall be deemed to prohibit the Attorney General from exercising any powers under Part 2 of Article 15 of Chapter 1 of Title 10 against any person. (Ga. L. 1972, p. 638, § 18; Code 1981, § 44-3-27; Code 1981, § 44-3-10 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-7 , as redesignated by Ga. L. 1995, p. 993, § 1; Ga. L. 2015, p. 1088, § 33/SB 148.)

The 2015 amendment, effective July 1, 2015, substituted "Attorney General" for "administrator appointed under Part 2 of Article 15 of Chapter 1 of Title 10" in the middle of subsection (d).

Cross references. - Revocation of licenses of real estate brokers and salesmen, § 43-40-25 .

Code Commission notes. - Pursuant to § 28-9-5 , in 1985, in subsection (d), "Part 2 of Article 15 of Chapter 1 of Title 10" was substituted for "said part" the second time that phrase appears.

Editor's notes. - Ga. L. 1995, p. 993, § 1, repealed former Code Section 44-3-7 , relating to investigations by the commission, on-site inspections and reinspections, and investigative hearings, and renumbered former Code Section 44-3-10 as Code Section 44-3-7 , effective July 1, 1995. Former Code Section 44-3-7 was based on Ga. L. 1972, p. 638, § 10; Code 1981, § 44-3-12 ; Code 1981, § 44-3-7, enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1984, p. 22, § 44; Ga. L. 1990, p. 606, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Securities Regulation - State, § 81.

C.J.S. - 79 C.J.S. Supp., Securities Regulation, §§ 275, 276.

44-3-8. Rights of buyer upon violation; persons liable for violations; limitation on actions; survival of actions; effect on statutory or common-law rights; exemption of advertisers from liability.

  1. Any person who violates any provision of Code Section 44-3-5 shall be liable to the person buying such land. Such buyer may bring an action in any court of competent jurisdiction to recover damages, even if that buyer no longer owns the land, or, upon tender of the land at any time before entry of judgment, to recover the consideration paid, or the fair value thereof at the time the consideration was paid if such consideration was not paid in cash, for the land with interest thereon at the rate of 7 percent per annum from the date of payment down to the date of repayment, together with all taxable court costs and reasonable attorney's fees.
  2. Every person who directly or indirectly controls a person liable under subsection (a) of this Code section, every general partner, executive officer, or director of such person liable under subsection (a) of this Code section, every person occupying a similar status or performing similar functions, and every person who participates in any material way in the sale is liable jointly and severally with and to the same extent as the person liable under subsection (a) of this Code section unless the person whose liability arises under the provisions of this subsection sustains the burden of proof that such person did not know and, in the exercise of reasonable care, could not have known of the existence of the facts by reason of which liability is alleged to exist. There is contribution as in the case of contract among several persons so liable.
  3. No person may bring an action under this Code section more than two years from the date of the contract for sale or sale if there is no contract for sale.
  4. Every cause of action under this article survives the death of any person who might have been a plaintiff or defendant.
  5. Nothing in this article shall limit any statutory or common-law right of any person in any court for any act involving the sale of land.
  6. The owner, publisher, licensee, or operator of any newspaper, magazine, visual or sound radio broadcasting station or network of stations, or the agents or employees of any such owner, publisher, licensee, or operator of such a newspaper, magazine, station or network of stations shall not be liable under this article for any advertising of any subdivision, lot, parcel, or unit in any subdivision carried in any such newspaper or magazine or by any such visual or sound radio broadcasting station or network of stations, nor shall any of them be liable under this article for the contents of any such advertisement, unless the owner, publisher, licensee, or operator has actual knowledge of the falsity thereof. (Ga. L. 1972, p. 638, § 20; Ga. L. 1976, p. 676, § 1; Code 1981, §§ 44-3-21, 44-3-22; Code 1981, § 44-3-11 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-8 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-8 as present Code Section 44-3-5.

JUDICIAL DECISIONS

Constitutionality of former law. - Ga. L. 1968, pp. 1364 and 1365, relating to the rights of a purchaser upon violation by a subdivider, the subdivider's agents, or employees, did not violate the constitutional provision which prevents the enactment of legislation impairing the obligations of a contract. Screamer Mt. Dev., Inc. v. Garner, 234 Ga. 590 , 216 S.E.2d 801 (1975).

Party defendant. - Insofar as the remedy sought under former Code 1933, § 84-6118 was for rescission of the purchase contract and return of moneys paid, the only logical party against whom the action might be brought was the subdivider with whom the purchaser had dealt. Elmblad v. Screamer Mt. Dev., Inc., 144 Ga. App. 146 , 240 S.E.2d 239 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 17A Am. Jur. 2d, Contracts, § 524 et seq. 51 Am. Jur. 2d, Limitation of Actions, § 1. 69 Am. Jur. 2d, Securities Regulation - State, § 10.

C.J.S. - 17A C.J.S., Contracts, §§ 421, 422. 79 C.J.S., Securities Regulation, § 263.

ALR. - Right of vendor and purchaser respectively to possession pending performance, but before default, of executory contract sale of real estate, 28 A.L.R. 1069 .

Duty of vendor as to abstract of title, 52 A.L.R. 1460 .

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

What constitutes abandonment of land contract by vendee, 68 A.L.R.2d 581.

Venue of action for rescission or cancellation of contract relating to interests in land, 77 A.L.R.2d 1014.

Failure of vendor to comply with statute or ordinance requiring approval or recording of plat prior to conveyance of property as rendering sale void or voidable, 77 A.L.R.3d 1058.

Practices forbidden by state deceptive trade practice and consumer protection acts, 89 A.L.R.3d 449.

Modern status of defaulting vendee's right to recover contractual payments withheld by vendor as forfeited, 4 A.L.R.4th 993.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

44-3-8.1. Denial of application, reprimand, suspension, civil penalty, or revocation of registration.

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-8.1 , enacted by Ga. L. 1990, p. 606, § 1.

44-3-9. Venue.

Except as provided in Code Section 44-3-6, for the purposes of venue for any civil or criminal action under this article, any violation of this article or of any rule, regulation, or order promulgated under this article shall be considered to have been committed in any county in which any act was performed in furtherance of the transaction which violated the article, in the county of any violator's principal place of business, and in any county in which any violator had control or possession of any proceeds of said violation or of any books, records, documents, or other material or objects which were used in furtherance of said violation.

(Code 1981, § 44-3-12 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-9 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-9 as present Code Section 44-3-6. Former Code Section 44-3-9 related to order of commission prohibiting act, practice, or transaction in violation of article; injunctive relief; criminal proceedings; and penalty for failure to pay registration and inspection fees.

44-3-10. Business records required.

Any developer or its agents shall keep among its business records and make reasonably available for examination to a purchaser or the purchaser's agent the following:

  1. A copy of each item required in Code Section 44-3-3; and
  2. A copy of the sales agreement from each sale relating to the purchase of real property in a subdivision. (Code 1981, § 44-3-14 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-10 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-10 as present Code Section 44-3-7.

44-3-11. Certain waivers in contract void.

Any condition, stipulation, or provision binding any person who enters into a transaction subject to the provisions of this article which waives:

  1. Compliance with any provision of this article or of the rules and regulations promulgated under this article;
  2. Any rights provided by this article or by the rules and regulations promulgated under this article; or
  3. Any defenses arising under this article or under the rules and regulations promulgated under this article shall be void. (Code 1981, § 44-3-16 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-11 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-11 as present Code Section 44-3-8.

44-3-12. Burden of proof of exemption.

In any action, civil or criminal, where a defense is based upon any exemption provided for in this article, the burden of proving the existence of such exemption shall be upon the party raising such defense.

(Code 1981, § 44-3-18 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-12 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-12 as present Code Section 44-3-9.

44-3-13. Application of prior law to actions, registrations, and orders prior to July 1, 1990.

Prior law exclusively governs all actions, prosecutions, or proceedings which are pending or may be initiated on the basis of facts or circumstances occurring before July 1, 1995, except that no civil actions may be maintained to enforce any liability under prior law unless brought within any period of limitation which applied when the cause of action accrued and, in any event, within two years of July 1, 1995.

(Code 1981, § 44-3-19 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Ga. L. 1991, p. 94, § 44; Code 1981, § 44-3-13 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, repealed former Code Section 44-3-13 , relating to notices of opportunity for hearing; and hearings and judicial reviews in accordance with the "Georgia Administrative Procedure Act," and renumbered former Code Section 44-3-19 as Code Section 44-3-13 , effective July 1, 1995. Former Code Section 44-3-13 was based on Code 1981, § 44-3-13, enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1984, p. 22, § 44; Ga. L. 1986, p. 10, § 44; Ga. L. 1990, p. 606, § 1.

44-3-13.1 through 44-3-13.3

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - These Code sections were based on Code 1981, § 44-3-13.1 through 44-3-13.3, enacted by Ga. L. 1990, p. 606, § 1.

44-3-14. Business records required.

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-14 as present Code Section 44-3-10.

44-3-15. Consent to service.

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-15 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1.

44-3-16. Certain waivers in contract void.

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-16 as present Code Section 44-3-11.

44-3-17. Immunity of commissioner and commission from liability and actions.

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-17 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1.

44-3-18. Burden of proof of exemption; effect of certificate of commission stating compliance or noncompliance with article; admissibility of copies of documents.

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-18 as present Code Section 44-3-12. Former Code Section 44-3-18 related to burden of proof of exemption, effect of certificate of commission stating compliance or noncompliance with article, and admissibility of copies of documents.

44-3-19. Application of prior law to actions, registrations, and orders prior to July 1, 1990; application of Code Section 44-3-13 to review of orders not instituted by July 1, 1990.

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-19 as present Code Section 44-3-13. Former Code Section 44-3-19 related to application of prior law to actions, registrations, and orders prior to July 1, 1990, and application of former Code Section 44-3-13 to review of orders not instituted by July 1, 1990.

44-3-20 through 44-3-27.

Repealed by Ga. L. 1982, p. 1431, § 1, effective November 1, 1982.

Editor's notes. - These Code sections, pertaining to violations of this article, and regulations, appeals, applicability, and effect on the Out-of-State Land Sales Act, were based on Ga. L. 1972, p. 638, §§ 12, 14, 15, 18, 20, 22; Ga. L. 1973, p. 578, § 1; Ga. L. 1976, p. 676, § 1; and Ga. L. 1982, p. 3, § 44.

ARTICLE 2 SALES OF SUBDIVIDED OUT-OF-STATE LANDS

44-3-40 through 44-3-54.

Repealed by Ga. L. 1982, p. 1431, § 1, effective November 1, 1982.

Editor's notes. - This article was based on Ga. L. 1971, p. 856, §§ 1-15, and Ga. L. 1982, p. 3, § 44.

ARTICLE 3 CONDOMINIUMS

Code Commission notes. - The Apartment Ownership Act, Ga. L. 1963, p. 561, has not been codified in light of § 44-3-113 .

Law reviews. - For article, "Condominium and Home Owner Associations: Formation and Development," see 24 Emory L.J. 977 (1975). For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For article, "Representing Condominium Unit Purchasers," see 21 Ga. St. B.J. 6 (1984). For note comparing scope of Georgia Apartment Ownership Act, prior to enactment of Condominium Act, with condominium litigation in other jurisdictions, see 23 Mercer L. Rev. 405 (1972). For note surveying revisions to Georgia Condominium Act between 1963 and 1975 regarding expansion, disclosure, liens, and incorporation, see 24 Emory L.J. 891 (1975).

RESEARCH REFERENCES

Litigation for Breach of Condominium Provisions, 31 Am. Jur. Trials 193.

Litigating Toxic Mold Cases, 91 Am. Jur. Trials 113.

Homeowners' Association Defense: Free Speech, 93 Am. Jur. Trials 293.

Condominium Construction Litigation: Community Association, 93 Am. Jur. Trials 405.

ALR. - Liability of vendor of condominiums for damage occasioned by defective condition thereof, 50 A.L.R.3d 1071.

Erection of condominium as violation of restrictive covenant forbidding erection of apartment houses, 65 A.L.R.3d 1212.

Enforceability of bylaw or other rule of condominium or cooperative association restricting occupancy by children, 100 A.L.R.3d 241.

Validity, construction, and application of statutes, or of condominium association's bylaws or regulations, restricting number of units that may be owned by single individual or entity, 39 A.L.R.4th 88.

Personal liability of owner of condominium unit to one sustaining personal injuries or property damage by condition of common areas, 39 A.L.R.4th 98.

Liability of owner of unit in condominium, recreational development, time-share property, or the like, for assessment in support of common facilities levied against and unpaid by prior owner, 39 A.L.R.4th 114.

Validity and enforceability of condominium owner's covenant to pay dues or fees to sports or recreational facility, 39 A.L.R.4th 129.

Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.

44-3-70. Short title.

This article shall be known and may be cited as the "Georgia Condominium Act."

(Ga. L. 1975, p. 609, § 1.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Condominium association had no duty to remove snow and ice. - Trial court properly granted a condominium association summary judgment in a premises liability action because interpreting the condominium association documents established that the association did not have a duty to remove snow and ice from the common walkway where the resident fell. Scrocca v. Ashwood Condominium Ass'n, 326 Ga. App. 226 , 756 S.E.2d 308 (2014). For article, "Georgia Condominium Law: Beyond the Condominium Act," see 13 Ga. St. B.J. 24 (2007).

Cited in Country Greens Village One Owner's Ass'n v. Meyers, 158 Ga. App. 609 , 281 S.E.2d 346 (1981); Powers v. Jones, 185 Ga. App. 859 , 366 S.E.2d 234 (1988); Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

44-3-71. Definitions.

As used in this article, the term:

  1. "Additional property" means any property which may be added to an expandable condominium in accordance with the provisions of the declaration and this article.
  2. "Association" means a corporation formed for the purpose of exercising the powers of the association of any condominium created pursuant to this article.
  3. "Board of directors" or "board" means an executive and administrative body, by whatever name denominated, designated in the condominium instruments as the governing body of the association.
  4. "Common elements" means all portions of the condominium other than the units.
  5. "Common expenses" means all expenditures lawfully made or incurred by or on behalf of the association together with all funds lawfully assessed for the creation and maintenance of reserves pursuant to the provisions of the condominium instruments.
  6. "Common profits" means all income collected or accrued by or on behalf of the association other than income derived from assessments pursuant to Code Section 44-3-80.
  7. "Condominium" means the property lawfully submitted to this article by the recordation of condominium instruments pursuant to this article. No property shall be deemed to be a condominium within the meaning of this article unless undivided interests in common elements are vested in the unit owners.
  8. "Condominium instruments" means the declaration and plats and plans recorded pursuant to this article. Any exhibit, schedule, or certification accompanying a condominium instrument and recorded simultaneously therewith shall be deemed an integral part of that condominium instrument. Any amendment or certification of any condominium instrument shall, from the time of the recordation of such amendment or certification, be deemed an integral part of the affected condominium instrument so long as such amendment or certification was made in accordance with this article.
  9. "Condominium unit" means a unit, as defined in paragraph (28) of this Code section, together with the undivided interest in the common elements appertaining to that unit.
  10. "Conversion condominium" means a condominium all or part of which may be used for residential purposes, which condominium contains any building or portion thereof that at any time before the recording of the declaration was occupied wholly or partially by persons other than persons who, at the time of the recording, had contractual rights to acquire one or more units within the condominium. This paragraph shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
  11. "Convertible space" means a portion of a structure within a condominium, which portion may be converted in accordance with this article into one or more units or common elements, including, but not limited to, limited common elements.
  12. "Court" means the superior court of the county where the condominium or any part thereof is located.
  13. "Declarant" means all owners and lessees of the property who execute the declaration or on whose behalf the declaration is executed; provided, however, that the phrase "owner and lessees," as used in this Code section and in Code Sections 44-3-72 and 44-3-89, shall not include in his capacity as such any mortgagee, any lienholder, any person having an equitable interest under any contract for the sale or lease of a unit, or any lessee or tenant of a unit. From the time of the recordation of any amendment to the declaration expanding an expandable condominium, all persons who execute that amendment or on whose behalf that amendment is executed shall also come within the definition of "declarant." Any successor-in-title of any owner or lessee referred to in this paragraph who comes to stand in the same relation to the condominium as his predecessor did shall also come within such definition.
  14. "Declaration" means the recordable instrument containing those matters required by Code Section 44-3-77 and any lawful amendments thereto.
  15. "Expandable condominium" means a condominium to which additional property may be added in accordance with the declaration and this article.
  16. "Foreclosure" means, without limitation, the judicial foreclosure of a mortgage and the exercise of a power of sale contained in any mortgage.
  17. "Identifying number" means one or more letters, numbers, symbols, words, or any combination thereof that identifies only one unit in the condominium.
  18. "Leasehold condominium" means a condominium in all or any portion of which each unit owner owns an estate for years or leasehold estate in his unit or in the property on or within which that unit is situated or both. A condominium including an estate for years in property, or an interest therein, on or within which no units are situated or to be situated shall not be deemed a leasehold condominium within the meaning of this article.
  19. "Limited common element" means a portion of the common elements reserved for the exclusive use of those entitled to the use of one or more, but less than all, of the units.

    (19.1) "Master association" means an association of a master condominium.

    (19.2) "Master condominium" means a condominium in which the condominium instruments permit one or more of the units to constitute a subcondominium.

  20. "Mortgage" means a mortgage, deed to secure debt, deed of trust, or other instrument conveying a lien upon or security title to property.
  21. "Mortgagee" means the holder of a mortgage.
  22. "Officer" means an officer of the association.
  23. "Permanently assigned limited common element" means a limited common element which cannot be reassigned or which can be reassigned only with the consent of the unit owner or owners of the unit or units to which it is assigned.
  24. "Person" means a natural person, corporation, partnership, association, trust, other entity, or any combination thereof.
  25. "Property" means any real property and any interest in real property, including, without limitation, parcels of air space.
  26. "Record" means to file for record in the office of the clerk of the superior court of all counties in which the condominium or any part thereof is located.

    (26.1) "Subassociation" means an association of a subcondominium.

    (26.2) "Subcondominium" means the property consisting of a unit of an existing condominium lawfully submitted under this article by the recordation of separate condominium instruments pursuant to this article.

  27. "Submitted property" means the property lawfully submitted to this article by the recordation of condominium instruments pursuant to this article. Additional property shall be deemed to be submitted property upon the expansion of a condominium pursuant to this article.

    (27.1) "Subunit" means a unit that constitutes a portion of a subcondominium.

  28. "Unit" means a portion of the condominium intended for any type of independent ownership and use. For the purposes of this article, a convertible space shall also be deemed a unit.
  29. "Unit owner" means one or more persons, including the declarant, who own a condominium unit or, in the case of a leasehold condominium, whose leasehold interest or interests in the condominium extend for the entire balance of the unexpired term or terms.

    (Ga. L. 1975, p. 609, §§ 3, 6; Ga. L. 1980, p. 1406, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 3, § 33; Ga. L. 2007, p. 611, § 1/HB 383.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

JUDICIAL DECISIONS

"Unit owner." - Definition of "owner" in the bylaws of a condominium association as "record title holder of a unit within the condominium but shall not mean a mortgage holder" did not conflict with the definition of "unit owner", but was merely a more precise definition to facilitate the collection of assessments; thus, the vendor of a unit was liable for assessments until the deed was recorded. Casey v. North Decatur Courtyards Condominium Ass'n, 213 Ga. App. 190 , 444 S.E.2d 361 (1994).

"Common element" versus "limited common element." - External water spigots were not "limited common elements" because the spigots were not assigned as such in the condominium documents, and use of the spigots could be restricted under O.C.G.A. § 44-3-76 to enforce condominium declarations. Frantz v. Piccadilly Place Condo. Ass'n, 278 Ga. 103 , 597 S.E.2d 354 (2004).

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

Cited in Powers v. Jones, 185 Ga. App. 859 , 366 S.E.2d 234 (1988).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, §§ 1, 3.

44-3-72. Creation of condominium.

A condominium shall come into existence upon the recordation of the declaration pursuant to this article and of the plats and plans required by Code Section 44-3-83. The declaration shall be duly executed by or on behalf of all of the owners and lessees of the submitted property.

(Ga. L. 1975, p. 609, § 9.)

Law reviews. - For comment, "Proposed Legislation for Property's Twilight Zone: Time Sharing in Georgia," see 34 Mercer L. Rev. 403 (1982).

44-3-73. Sufficiency of descriptions of condominium units; description of undivided interest in common elements.

After the submission of any property to this article, no description of a condominium unit located thereon shall be deemed vague, uncertain, or otherwise insufficient if it sets forth the identifying number of that unit, the name of the condominium, the name of the county or counties in which the condominium is located, and the deed book and page number where the first page of the declaration is recorded. Any such description shall be deemed to include the undivided interest in the common elements appertaining to such unit even if such interest is not stated or referred to in the description.

(Ga. L. 1975, p. 609, § 10.)

JUDICIAL DECISIONS

Description of parking units. - Because a condominium developer had not originally provided the buyers with a legal description of parking units the buyers were buying, but after the seller built the units the buyers notified the seller of their choice of units, the application of O.C.G.A. § 44-3-73 was not warranted as it would create an incongruous result: the purchase agreement would be enforceable as to the residential unit but unenforceable as to the parking units. Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 7 et seq.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 412 et seq.

44-3-74. Recording condominium instruments, plats, plans, and encumbrances.

  1. The declaration and any amendments thereto shall be entitled to recordation if executed in the manner required for recording deeds to real property. All condominium instruments and any amendments and certifications thereto shall set forth the name of the condominium; the name of the county or counties in which the condominium is located; and, except for the declaration itself, the deed book and page number where the first page of the declaration is recorded or the document number assigned to the declaration upon its recordation. All condominium instruments and all amendments and certifications thereto shall be recorded in every county where any portion of the condominium is located. The recordation shall not require the approval of any county or municipal authority or official except as to the manner of execution prescribed by this Code section.
  2. The clerk of superior court shall continue to maintain any legacy condominium plat books, condominium site plan books, condominium plot plan books, or condominium floor plan books that currently exist either in their current form or in electronic format.
  3. All deeds, mortgages, liens, leases, and encumbrances of any kind affecting any condominium unit or duplicate originals thereof or copies thereof certified by the clerk of superior court in whose office the same are first recorded shall be recorded in all counties in which any part of the submitted property is located.

    (Ga. L. 1975, p. 609, § 11; Ga. L. 2016, p. 193, § 9/HB 1004; Ga. L. 2017, p. 774, § 44/HB 323.)

The 2016 amendment, effective January 1, 2017, substituted the present provisions of subsection (b) for the former provisions, which read: "In addition to the records and indexes required to be maintained by the clerk of the superior court, such clerk shall maintain one or more separate plat books, entitled 'Condominium Plat Book," in which shall be recorded all plats required to be filed pursuant to this article. In addition to such plats, there shall also be entitled to be recorded in such plat books other plats, including site plans and plot plans, prepared by a registered land surveyor and affecting any condominium; but the same shall not constitute the recording of a plat pursuant to Code Section 44-3-83 unless they comply with all requirements thereof. The record of the declaration and of any amendment thereto shall contain a reference to the plat book and page number of the plat or plats recorded in connection therewith."; deleted former subsection (c), which read: "The plans required to be recorded pursuant to Code Section 44-3-83 shall be kept by the clerk of the superior court in a separate file for each condominium and shall be indexed in the same manner as a conveyance entitled to record, numbered serially in the order of receipt, each designated 'Condominium Plans,' with the name of the condominium, and each containing a reference to the deed book and page number where the first page of the declaration is recorded or the document number assigned to the declaration upon its recordation. The record of the declaration and of any amendment thereto shall contain a reference to the file number of the plans recorded in connection therewith."; redesignated former subsection (d) as present subsection (c); and, in present subsection (c), deleted "the" following "clerk of" in the middle.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in subsection (b).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 10.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Record of executory contracts for the sale of real estate, 26 A.L.R. 1546 .

44-3-75. Construction and validity of condominium instruments; conflicts and inconsistencies; severability.

  1. Except to the extent otherwise provided by the condominium instruments:
    1. The terms defined in Code Section 44-3-71 shall be deemed to have the meanings therein specified wherever they appear in the condominium instruments unless the context otherwise requires;
    2. To the extent that walls, floors, or ceilings are designated as the boundaries of the units or of any specified units, all doors and windows therein and all lath, wallboard, plasterboard, plaster, paneling, molding, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof shall be deemed a part of such units; but all other portions of such walls, floors, or ceilings shall be deemed a part of the common elements;
    3. If any chutes, flues, ducts, conduits, wires, bearing walls, bearing columns, or any other apparatus lies partially inside and partially outside of the designated boundaries of a unit, any portions thereof serving only that unit shall be deemed a part of that unit; but any portions thereof serving more than one unit or any portion of the common elements shall be deemed a part of the common elements;
    4. Subject to paragraph (3) of this subsection, all space, interior partitions, and other fixtures and improvements within the boundaries of a unit shall be deemed a part of that unit;
    5. Any shutters, awnings, window boxes, doorsteps, porches, balconies, patios, and any other apparatus designed to serve a single unit shall be deemed a limited common element appertaining to that unit exclusively; and
    6. The requirement of consent to or joinder in any act or instrument by any unit owner shall not be deemed to require the consent to or joinder in such act or instrument by any mortgagee of or the holder of any lien upon such unit owner's condominium unit except to the extent expressly required by this article.
  2. In the event that any allocation of undivided interest in the common elements, votes in the association, or liability for common expenses stated in any deed or mortgage to or of any condominium unit conflicts with the allocations thereof as set forth in the declaration, the declaration shall control.
  3. In the event of any inconsistency between this article and the provisions of any declaration, this article shall control. Unless otherwise provided in the condominium instruments, in the event of any inconsistency between the declaration and the provisions of any bylaws of the association, the declaration shall control.
  4. The condominium instruments shall be construed together and shall be deemed to incorporate one another to the extent that any requirement of this article as to the content of one would be satisfied if any other condominium instrument were incorporated therein by reference.
  5. If any provision, sentence, clause, phrase, or word of any condominium instrument or the application thereof in any circumstances is held invalid, the validity of the remainder of the condominium instrument and of the application of any such provision, sentence, clause, phrase, or word in other circumstances shall not be affected thereby.

    (Ga. L. 1975, p. 609, § 12; Ga. L. 1990, p. 227, § 1.)

JUDICIAL DECISIONS

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

44-3-76. Compliance with condominium instruments, rules, and regulations; means of enforcement.

Every unit owner and all those entitled to occupy a unit shall comply with all lawful provisions of the condominium instruments. In addition, any unit owner and all those entitled to occupy a unit shall comply with any reasonable rules or regulations adopted by the association pursuant to the condominium instruments which have been provided to the unit owners and with the lawful provisions of bylaws of the association. Any lack of such compliance shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, maintainable by the association or, in any proper case, by one or more aggrieved unit owners, on their own behalf or as a class action. If and to the extent provided in the condominium instruments, the association shall be empowered to impose and assess fines, and suspend temporarily voting rights and the right of use of certain of the common elements in order to enforce such compliance; provided, however, that no such suspension shall deny any unit owner or occupants access to the unit owned or occupied nor cause any hazardous or unsanitary condition to exist. If the voting right of a unit owner has been suspended, then to the extent provided in the condominium instruments, that unit owner's vote shall not count for purposes of establishing a quorum or taking any action which requires a vote of the owners under this article or the condominium instruments. Notwithstanding any other provision of this Code section, to the extent provided in the condominium instruments, water, gas, electricity, heat, and air conditioning services being provided to a unit or unit owner by the association may be terminated for failure to pay assessments and other amounts due pursuant to subsection (a) of Code Section 44-3-109, subject to the suspension standards and notice requirements imposed on the institutional providers providing such services to the condominium development, only after a final judgment or final judgments in excess of a total of $750.00 are obtained in favor of the association from a court of competent jurisdiction. The utility services shall not be required to be restored until the judgment or judgments and any reasonable utility provider charges or other reasonable costs incurred in suspending and restoring such services are paid in full. All common expenses for termination and restoration of any services pursuant to this Code section shall be an assessment and a lien against the unit.

(Ga. L. 1975, p. 609, § 13; Ga. L. 1982, p. 3, § 44; Ga. L. 1990, p. 227, § 2; Ga. L. 1994, p. 1943, § 2; Ga. L. 2004, p. 560, § 1.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Exhaustion of alternative remedies not required. - Association was not required to exhaust alternative remedies as a condition precedent to the association's use of O.C.G.A. § 44-3-76 to enforce the payment of assessments. Fontaine Condominium Ass'n v. Schnacke, 230 Ga. App. 469 , 496 S.E.2d 553 (1998).

Termination of common elements to enforce assessments. - Condominium association was entitled to alter the association's declaration to allow the association to terminate water service from common elements, such as exterior spigots, if a unit owner owed a certain amount in judgment, even though the amendment affected facts retrospectively. Since a unit owner owed more than that amount, the association was granted a preliminary injunction forbidding the unit owner from using any external water spigots and forbidding any other unit owner from allowing that unit owner to use such common element spigots. Frantz v. Piccadilly Place Condo. Ass'n, 278 Ga. 103 , 597 S.E.2d 354 (2004).

Vehicle towing. - Trial court's grant of summary judgment to a condominium association and others in an action by a vehicle owner whose vehicle was towed from the common areas of the condominium complex was proper as the association had authority under the association's declaration as well as pursuant to O.C.G.A. § 44-3-76 to impose rules and regulations regarding the towing of vehicles, there was no showing that the association's rules were selectively enforced, and the notice requirements prior to the towing were complied with by the association. King v. Chism, 279 Ga. App. 712 , 632 S.E.2d 463 (2006).

Cited in First Fed. Sav. Bank v. Eaglewood Court Condominium Ass'n, 186 Ga. App. 605 , 367 S.E.2d 876 (1988); Spratt v. Henderson Mill Condominium Ass'n, 224 Ga. App. 761 , 481 S.E.2d 879 (1997).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking, 60 A.L.R.5th 647.

44-3-77. Contents of declaration.

  1. The declaration for every condominium shall contain the following:
    1. The name of the condominium, which name shall include the word "condominium" or be followed by the words "a condominium";
    2. The name of the county or counties in which the condominium is located;
    3. A legal description by metes and bounds of the submitted property, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
    4. A description or delineation of the boundaries of the units, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
    5. A description or delineation of any limited common elements showing or designating the unit or units to which each is assigned;
    6. A description or delineation of all common elements which may subsequently be assigned as limited common elements together with a statement that they may be so assigned and a description of the method whereby any such assignments shall be made in accordance with Code Section 44-3-82;
    7. The allocation to each unit of an undivided interest in the common elements in accordance with Code Section 44-3-78;
    8. The allocation to each unit of a number of votes in the association in accordance with Code Section 44-3-79;
    9. The allocation to each unit of a share of the liability for common expenses in accordance with Code Section 44-3-80;
    10. Any limitations or restrictions on the powers of the association and the board of directors;
    11. The name and address of the attorney or other person who prepared the declaration;
    12. A statement of any and all restrictions on the general use of the condominium or a statement that there are no such restrictions; and
    13. Such other matters not inconsistent with this article as the declarant deems appropriate.
  2. If the condominium is an expandable condominium, the declaration shall also contain the following:
    1. The explicit reservation of an option or options to expand the condominium;
    2. A time limit or date not exceeding seven years from the recording of the declaration upon which all options to expand the condominium shall expire together with a statement of any circumstances which will terminate any such option prior to the expiration of the time limit so specified; provided, however, that, if the condominium instruments so provide, the unit owners of units to which two-thirds of the votes in the association appertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, may consent to the extension of any such option within one year prior to the date upon which the option would otherwise have expired;
    3. A statement of any other limitations on the option or options or a statement that there are no such limitations;
    4. A legal description by metes and bounds of the additional property, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
    5. A statement as to whether portions of the additional property may be added to the condominium at different times, together with any limitations fixing the boundaries of those portions by legal descriptions setting forth the metes and bounds thereof or regulating the order in which they may be added to the condominium, or a statement that there are no such limitations;
    6. A statement of any limitations as to the location of any improvements that may be made on any portions of the additional property or a statement that there are no such limitations;
    7. A statement of the maximum number of units that may be created on the additional property. If portions of the additional property may be added to the condominium and the boundaries of those portions are fixed in accordance with paragraph (5) of this subsection, the declaration shall also state the maximum number of units that may be created on each such portion added to the condominium. If portions of the additional property may be added to the condominium and the boundaries of those portions are not fixed in accordance with paragraph (5) of this subsection, then the declaration shall also state the maximum average number of units per acre that may be created on any such portion added to the condominium;
    8. With regard to the additional property, a statement of whether any units may be created therein that may not be restricted exclusively to residential use and, if so, a statement of the maximum extent thereof or a limitation as to the extent of such nonresidential use;
    9. A statement of the extent to which any structures erected on any portion of the additional property added to the condominium will be compatible with structures on the submitted property in terms of quality of construction, the principal materials to be used, and architectural style or a statement that no assurances are made in those regards;
    10. A description of all other improvements that will be made on any portion of the additional property added to the condominium, or a statement of any limitations as to what other improvements may be made thereon, or a statement that no assurances are made in that regard;
    11. A statement that any units created on any portion of the additional property added to the condominium will be substantially identical to the units on the submitted property, or a statement of any limitations as to what types of units may be created thereon, or a statement that no assurances are made in that regard;
    12. A description of the declarant's reserved right, if any, to create limited common elements within any portion of the additional property or to designate common elements therein which may subsequently be assigned as limited common elements, in terms of the types, sizes, and maximum number of such limited common elements within each such portion, or a statement that no limitations are placed on that right; and
    13. A statement of a formula, ratio, or other method whereby, upon the expansion of any expandable condominium, there shall be reallocated among the units the undivided interests in the common elements, the votes in the association, and the liability for common expenses.

      Plats or plans may be recorded with the declaration of any amendment thereto and identified therein to supplement or provide information required to be furnished pursuant to this subsection; and provided, further, that paragraph (8) of this subsection need not be complied with if none of the units on the submitted property are restricted exclusively to residential use.

  3. If the condominium contains any convertible space, the declaration shall also contain a statement of a formula, ratio, or other method whereby, upon the conversion of all or any portion of a convertible space, there shall be allocated among the units created therefrom such undivided interest in the common elements, such number of votes in the association, and such liability for common expenses as previously pertained to such convertible space.
  4. If the condominium is a leasehold condominium, with respect to any ground lease, other lease, or other instrument creating the estate for years, the expiration or termination of which may terminate or reduce the condominium, the declaration shall set forth the county or counties wherein the same are recorded and the deed book and page number where the first page of each such lease or other instrument is recorded. The declaration shall also contain the following:
    1. The date upon which such leasehold or estate for years is due to expire;
    2. A statement of whether any property will be owned by the unit owners in fee simple and, if so, a legal description by metes and bounds of any such property. With respect to any improvements owned by the unit owners in fee simple, the declaration shall contain a statement of any rights the unit owners shall have to remove the improvements after the expiration or termination of the leasehold or estate for years involved or a statement that they shall have no such rights;
    3. A statement of the name and address of the person or persons to whom payments of rent must be made by the unit owners unless such rent is collected from the unit owners as a part of the common expenses; and
    4. A statement of the share of liability for payments under any such lease or other instrument which are chargeable against each unit.
  5. Whenever this Code section requires a legal description by metes and bounds of submitted property or additional property, such requirement shall be deemed to include a requirement of a legally sufficient description of any easements that are submitted to this article or that may be added to the condominium, as the case may be. In the case of any such easement, the declaration shall contain the following:
    1. A description of the permitted use or uses;
    2. If the benefit of the easement does not inure to all units and their lawful occupants, a statement of the relevant restrictions and limitations on utilization; and
    3. If any person other than those entitled to occupy any unit may use the easement, a statement of the rights of others to such use.

      Notwithstanding any other provision of this subsection, the foregoing requirements may be satisfied by attaching a true copy of any such easement to the declaration.

  6. Whenever this Code section requires a legal description by metes and bounds of submitted property or additional property, such requirement shall be deemed to include a separate legal description by metes and bounds of all property in which the unit owners collectively shall or may be tenants in common or joint tenants with any other persons. No units shall be situated on any such property, however, and the declaration shall describe the nature of the unit owners' estate therein. No such property shall be shown on the same plat or plats showing other portions of the condominium but shall be shown instead on separate plats unless such property is specifically shown and labeled as being owned subject to such a tenancy.
  7. Wherever this article requires a statement of a method for allocation or reallocation of undivided interests in the common elements, votes in the association, and the liability for common expenses, such method shall be so related to the physical characteristics of the units affected or otherwise so stated as to enable any person to determine the interest, vote, or share in such matters pertaining to any particular unit upon such allocation or reallocation. Certain spaces within the units, including, without limitation, attic, basement, and garage space, may but need not be omitted from such calculation or partially discounted by the use of a ratio so long as the same basis of calculation is employed for all units in the condominium. In the event that the declaration allocates or provides for the allocation to any unit of a different share of undivided interests in common elements than is allocated for liability for common expenses, such difference shall be based upon a good faith estimate of the declarant regarding the approximate relative maintenance or other costs occasioning such disparity, and the basis of such determination shall be stated in the declaration; provided, however, that no unit owner or other person may require any reallocation on account of any disparity between actual costs and the determination reflected in the declaration. Subject to the foregoing sentence of this subsection, nothing contained in this article shall be construed to require that the proportions of undivided interest in the common elements, of votes in the association, or of liability for common expenses assigned and allocated to each unit be equal, it being intended that such proportions may be independent.

    (Ga. L. 1975, p. 609, § 14; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Amendment to declaration binding. - An amendment to a declaration of condominium stating that 30 units were to be built on Phase IV of the development was a binding restriction that prevented a buyer from building more than 30 units on Phase IV; both the amendment and the relevant plat had been properly recorded, and thus the buyer knew of the 30-unit restriction and knew that buyers of completed units in Phases I, II, and III and the condominium association had relied upon that restriction. Waterfront, LLP v. River Oaks Condo. Ass'n, 287 Ga. App. 442 , 651 S.E.2d 481 (2007), cert. denied, 2008 Ga. LEXIS 78 (Ga. 2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 7 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-78. Allocation - Interests in common elements.

  1. The declaration shall allocate to each unit depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83 an undivided interest in the common elements. Such allocation may be by percentage, fraction, formula, or any other method which indicates the relative undivided interests in the common elements. If an equal undivided interest in the common elements is allocated to each unit, the declaration may merely so state.
  2. All of the undivided interests in the common elements shall be allocated to the units created by the declaration and shall be subject to reallocation as provided in this article.
  3. If the undivided interests allocated are other than equal, the undivided interest allocated to each unit shall be reflected by a table or provision in the declaration or by an exhibit or schedule accompanying the declaration and recorded simultaneously therewith identifying the units, listing them serially or grouping them together in the case of units to which identical undivided interests are allocated, and setting forth the fraction, percentage, or other statement of undivided interest in the common elements allocated thereto.
  4. Except to the extent otherwise expressly provided by this article, the undivided interest in the common elements allocated to any unit shall not be altered; and any purported transfer, encumbrance, or other disposition of that interest without the unit to which it pertains shall be void.
  5. The common elements shall not be subject to any action for partition except as provided in Code Sections 44-3-98 and 44-3-99.
  6. No undivided interest in the common elements shall be allocated to any unit unless such unit is depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83.

    (Ga. L. 1975, p. 609, § 15.)

JUDICIAL DECISIONS

Combining parking units with residential units held proper. - Condominium declaration properly allocated interests in the common elements under O.C.G.A. § 44-3-78(a) , and the votes in the condominium association under O.C.G.A. § 44-3-79(a) , by combining parking units with residential units, because no provision of the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., requires parking units to have voting rights or to have an interest in the common elements that is independent of or separate from the rights and interests of residential units or service units. Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 29 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

44-3-79. Allocation - Votes in association; how votes cast; majority vote requirements.

  1. The declaration shall allocate a number of votes in the association to each unit depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83. The allocation of such votes may be by percentage, fraction, formula, or any other method which indicates the relative voting power allocated to each unit. If an equal vote is allocated to each unit, the declaration may merely so state. All of the votes in the association shall be allocated among the units depicted on such plats or plans and shall be subject to reallocation as provided in this article.
  2. Since a unit owner may be more than one person, if only one of those persons is present at a meeting of the association or is voting by proxy, ballot, or written consent, that person shall be entitled to cast the votes pertaining to that unit. However, if more than one of those persons is present or executes a proxy, ballot, or written consent, the vote pertaining to that unit shall be cast only in accordance with their unanimous agreement unless the condominium instruments expressly provide otherwise; and such consent shall be conclusively presumed if any one of them purports to cast the votes pertaining to that unit without protest being made immediately by any of the others to the person presiding over the meeting or vote.
  3. The votes pertaining to any unit may, and, in the case of any unit owner not a natural person or persons, shall, be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner or, in cases where the unit owner is more than one person, by or on behalf of the joint owners of the unit. No such proxy shall be revocable except as provided in Code Section 14-2-722 or 14-3-724 or by written notice delivered to the association by the unit owner or by any joint owners of a unit. Any proxy shall be void if it is not dated or if it purports to be revocable without such notice.
  4. Except in the case of any condominium of which no part is restricted exclusively to residential use, if 50 percent or more of the votes in the association pertain to 25 percent or less of the condominium units, then in any case where a majority vote is required by the condominium instruments or by this article the requirement for such a majority shall be deemed to include, in addition to the specified majority of the votes, assent by the unit owners of a like majority of the condominium units.
  5. Anything in this Code section to the contrary notwithstanding, no votes in the association shall be deemed to pertain to any condominium unit during such time as the unit owner thereof is the association nor shall any vote be allocated to any condominium unit unless the condominium unit is depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83. Except to the extent otherwise expressly provided or permitted by this article, the votes allocated to any condominium unit shall not be altered.

    (Ga. L. 1975, p. 609, § 16; Ga. L. 1982, p. 3, § 44; Ga. L. 2004, p. 560, § 2.)

JUDICIAL DECISIONS

Combining parking units with residential units held proper. - Condominium declaration properly allocated interests in the common elements under O.C.G.A. § 44-3-78(a) , and the votes in the condominium association under O.C.G.A. § 44-3-79(a) , by combining parking units with residential units, because no provision of the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., requires parking units to have voting rights or to have an interest in the common elements that is independent of or separate from the rights and interests of residential units or service units. Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 24 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-80. Allocation - Liability for common expenses; how assessments made.

  1. Except to the extent that the condominium instruments provide otherwise, any common expenses associated with the maintenance, repair, renovation, restoration, or replacement of any limited common element shall be specially assessed against the condominium unit to which that limited common element was assigned at the time the expenses were made or incurred; however, if any limited common element was assigned at that time to more than one unit, the common expenses shall be specifically assessed against each condominium unit equally so that the total of the special assessments equals the total of the expenses.
  2. To the extent that the condominium instruments expressly so provide:
    1. Any other common expenses benefiting less than all of the units shall be specially assessed equitably among all of the condominium units so benefited;
    2. Any other common expenses occasioned by the conduct of less than all of those entitled to occupy all of the units or by the licensees or invitees of any such unit or units shall be specially assessed against the condominium unit or units, the conduct of any occupant, licensee, or invitee of which occasioned any such common expenses;
    3. Any other common expenses significantly disproportionately benefiting all of the units shall be assessed equitably among all of the condominium units; and
    4. Other than for limited common elements expressly designated as such in the condominium instruments and assigned to fewer than all units, nothing contained in paragraph (1) or (3) of this subsection shall permit an association to specially or disproportionately allocate common expenses for periodic maintenance, repair, and replacement of any portion of the common elements or the units which the association has the obligation to maintain, repair, or replace.
  3. The amount of all common expenses not specially assessed pursuant to subsection (a) or (b) of this Code section, less the amount of all undistributed and unreserved common profits, shall be assessed against the condominium units in accordance with the allocation of liability for common expenses set forth in the declaration. The allocation may be by percentage, fraction, formula, or any other method which indicates the relative liabilities for common expenses. If an equal liability for common expenses is allocated to each unit, the declaration may merely so state. The entire liability for common expenses shall be allocated among the units depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83 and shall be subject to reallocation as provided in this article. Except to the extent otherwise expressly provided or permitted by this article, the allocations of the liability shall not be altered; provided, however, that no reallocation shall affect any assessment or installation thereof becoming due and payable prior to reallocation. The assessments shall be made by the association annually or more often if the condominium instruments so provide and shall be payable in the manner determined by the association. Notwithstanding any unequal allocation of liabilities for common expenses pursuant to this subsection, this provision shall not preclude the association from levying charges equally among units for services or items provided to owners upon request, or which provide proportionate or uniform benefit to the units, including, but not limited to, uniform charges for pool keys or other common element entry devices.
    1. The declarant shall pay for all common expenses until the first common expense assessment is due from any unit owner. Thereafter, no unit owner other than the association shall be exempted from any liability for any assessment under this Code section or under any condominium instrument for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment of his or her unit or any part of the common elements.
    2. Notwithstanding paragraph (1) of this subsection, if authorized by the declaration, a declarant who is offering units for sale may elect to be excused from payment of assessments assessed pursuant to subsection (c) of this Code section against those unsold and unoccupied units for a stated period of time after the original declaration is recorded, not to exceed 24 months after the date the original declaration is recorded; provided, however, that as to assessments assessed pursuant to subsection (c) of this Code section, the declarant must pay common expenses incurred during such period which exceed the amounts assessed against other unit owners in the same condominium. During any period in which the declarant is excused from payment of assessments assessed pursuant to subsection (c) of this Code section:
      1. No capital contributions, start-up funds, initiation fees, or contributions to capital reserve accounts which are receivable from unit purchasers or unit owners and payable to the association at closing may be used for payment of common expenses;
      2. No portion of the payment of assessments collected from owners intended to be utilized for reserves for deferred maintenance, reserves for depreciation, or other reserves, as shown on the operating budget for the condominium, may be used for payment of common expenses; and
      3. No prepayments of assessments made by owners shall be used for the payment of common expenses prior to the time the assessments would otherwise be due.
    3. If during the period that the declarant is excused from payment of assessments as provided in paragraph (2) of this subsection common expenses are incurred resulting from a casualty which is not covered by proceeds from insurance maintained by the association, such common expenses shall be assessed against all unit owners owning units on the date of such casualty, and their respective successors and assigns, including the declarant with respect to units owned by the declarant. In the event of such an assessment, all units shall be assessed in accordance with the allocation of the liability for common expenses set forth in the declaration as provided in subsection (c) of this Code section.
    4. During any such time as the declarant has the right to control the association pursuant to Code Section 44-3-101, any capital contributions, start-up funds, initiation fees, or contributions to capital reserve accounts which are receivable from unit purchasers or unit owners and payable to the association at closing and any portion of the payment of assessments collected from owners intended to be utilized for reserves for deferred maintenance, reserves for depreciation, or other reserves, as shown on the operating budget for the condominium, shall be deposited into one or more separate reserve accounts and shall not be used to pay for any common expenses, without the agreement of the unit owners of units to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant. No waiver of the right of any unit owner to grant or withhold consent to such agreement shall be valid.
  4. Unless otherwise provided in the condominium instruments and except as provided in subsection (f) of this Code section, the grantee in a conveyance of a condominium unit shall be jointly and severally liable with the grantor thereof for all unpaid assessments against the latter up to the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee therefor; provided, however, that, if the grantor or grantee shall request a statement from the association as provided in Code Section 44-3-109, such grantee and his successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit conveyed be subject to a lien for any unpaid assessments against such grantor in excess of any amount set forth in the statement.
  5. In the event that the holder of a first priority mortgage or a secondary purchase money mortgage of record, provided that neither the grantee nor any successor grantee on the secondary purchase money mortgage is the seller of the unit, or any other person acquires title to any condominium unit as a result of foreclosure of any such mortgage, such holder or other person and successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit be subject to a lien for any assessment under this Code section or under any condominium instrument chargeable to the condominium unit on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and successors, successors-in-title, and assigns.
  6. A condominium instrument recorded on or after July 1, 2015, shall not authorize the board of directors to impose:
    1. Except as provided in subsections (a) and (b) of this Code section and subsections (a) and (b) of Code Section 44-3-109, a special assessment fee per unit in excess of one-sixth of the annual common expense assessment for the unit levied pursuant to subsection (c) of this Code section per fiscal year without the approval of a majority of the unit owners; or
    2. A monthly maintenance fee increase in excess of the percentage equal to the annual rate of inflation as measured by the Consumer Price Index for All Urban Consumers for the immediately preceding 12 month period may be disapproved by unit owners holding a majority of the association vote.

      (Ga. L. 1975, p. 609, § 17; Ga. L. 1990, p. 227, § 3; Ga. L. 1994, p. 1943, §§ 3, 4; Ga. L. 2004, p. 560, § 3; Ga. L. 2007, p. 611, § 2/HB 383; Ga. L. 2015, p. 889, § 1/HB 245.)

The 2015 amendment, effective July 1, 2015, substituted "July 1, 2015" for "July 1, 1990" in subsection (g); and substituted "one sixth of the annual common expense assessment for the unit levied pursuant to subsection (c) of this Code section" for "an average of $200.00" in the middle of paragraph (g)(1).

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Liability of unit owner for assessment. - Language of subsection (d) of O.C.G.A. § 44-3-80 is plain and susceptible of only one interpretation, that there is no legal justification for a condominium owner to fail to pay valid condominium assessments; this reflects a clear choice by the legislature that the owner's obligation to pay assessments be absolute and a condominium unit owner involved in a dispute with the condominium association about the association's services and operations may not exert leverage in that controversy by withholding payment but must seek another remedy. Forest Villas Condominium Ass'n v. Camerio, 205 Ga. App. 617 , 422 S.E.2d 884 (1992).

Condominium association's property manager's affidavit, in which the manager testified that the manager was familiar with the billing processes of the association and the association's records and that the manager's affidavit was on personal knowledge, was sufficient to support summary judgment for the association in the association's action against an owner for assessments and fees. Because the declaration provided for attorney's fees, an award of attorney's fees was mandated under O.C.G.A. § 44-3-109(b)(3), although the association did not ask for the fees. Ellington v. Gallery Condo. Ass'n, 313 Ga. App. 424 , 721 S.E.2d 631 (2011).

Tax deed purchaser obligated to pay condominium assocation assessments. - Trial court erred in denying the condominium association's motion for summary judgment finding that the association was not entitled to collect unpaid condominium association assessments from the tax deed purchaser that had accrued during the pendency of the litigation because, under O.C.G.A. § 44-3-80 , the purchaser was obligated to pay condominium association assessments that accrued after the tax sale, even during the period before it could foreclose on the right of redemption, and even if it was involved in an ongoing dispute with the association. Northlake Manor Condo. Ass'n v. Harvest Assets, LLC, 345 Ga. App. 575 , 812 S.E.2d 658 (2018).

Common expenses. - Plaintiff condominium association could not assess against defendant owner's unit, as common expenses under O.C.G.A. § 44-3-80(b)(2), legal fees and interest in connection with enforcing restraining orders against a former occupant since the occupant had moved before those expenses were incurred. One Buckhead Loop Condo. Ass'n v. Pew, F.3d (11th Cir. July 5, 2012)(Unpublished).

Collective owners of a condominium unit are liable for the unit's portion of the total assessment levied on all units, not just to the extent of their individual ownership; thus, an owner of a one percent interest in a unit was jointly and severally liable for all assessments levied while the person was a co-owner. Chattahoochee Chase Condominium Ass'n v. Ruben, 221 Ga. App. 724 , 472 S.E.2d 520 (1996).

While O.C.G.A. § 44-3-80 provides a mechanism to impose a special assessment to the extent that the condominium instruments expressly so provide, when none of the condominium instruments provided for a special assessment against some but not all of the unit owners, general assessments were not invalid, and the trial court erred in denying the condominium association's motion for summary judgment. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460 , 509 S.E.2d 729 (1998).

Liability of foreclosing mortgagee. - While a foreclosing mortgagee is clearly not liable nor is its property interest subject to a lien for any assessment, it is obligated to pay a pro rata amount of that "unpaid share" which becomes a part of the common expenses, but the condominium association would not be entitled to recover from the foreclosing mortgagee a pro rata share of the elements enumerated in O.C.G.A. § 44-3-109(b) because those elements arise only from the lien which results from the failure to make a timely payment of assessments. First Fed. Sav. Bank v. Eaglewood Court Condominium Ass'n, 186 Ga. App. 605 , 367 S.E.2d 876 , cert. denied, 186 Ga. App. 918 , 367 S.E.2d 876 (1988).

Liability of secondary purchase-money mortgagee. - Even though a secondary purchase-money mortgagee did not sell the condominium unit directly to the debtor who eventually failed to pay the mortgage or condominium fees and assessments, the association's lien was superior to the mortgage, and the mortgagee, as the seller of the unit, was liable for preforeclosure fees and assessments. Dunhill Condominium Ass'n v. Gregory, 228 Ga. App. 494 , 492 S.E.2d 242 (1997).

Characterization of payments as other than assessments. - Condominium association may not sidestep the clear dictates of O.C.G.A. § 44-3-80 by merely characterizing payments asked for as something other than condominium assessments. The expenditures, whatever called, are the type of payments covered by the statute. Accordingly, the trial court concluded that the association's complaint was preempted by O.C.G.A. § 44-3-80 and granted defendant's motion to dismiss with prejudice. Kingsmill Village Condominium Ass'n v. Homebanc Fed. Sav. Bank, 204 Ga. App. 900 , 420 S.E.2d 771 (1992).

Procedural fairness. - When a condominium's board of directors determined that owners received a benefit from the services of a contractor in attempting to maintain certain occupancy rates, and no evidence was submitted showing the board's decision was procedurally unfair, unreasonable, or made in bad faith, the trial court erred in denying the condominium association's motion for summary judgment. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460 , 509 S.E.2d 729 (1998).

Assessment of litigation fees and costs. - Trial court did not err in dismissing the condominium association's counterclaim seeking to collect on an assessment of litigation fees and costs against two former association members who had unsuccessfully sued the association as the former members' lawsuit did not result solely from the former members' conduct without reference also to the conduct of the association because the former members' claims were based on the conduct of the association with respect to its response to and management of various mold and moisture issues. City Heights Condo. Ass'n v. Bombara, 337 Ga. App. 679 , 788 S.E.2d 563 (2016).

Trial court did not err in dismissing the condominium association's counterclaim seeking to collect on an assessment of litigation fees and costs against two former association members who had unsuccessfully sued the association because the association had already obtained a judgment for the money to which the assoication was entitled to as a result of having to defend against a claim the trial court determined lacked substantial justification; and the former members' remaining claims, while not ultimately successful, were sufficiently justified that the trial court did not penalize the former members for bringing the claims. City Heights Condo. Ass'n v. Bombara, 337 Ga. App. 679 , 788 S.E.2d 563 (2016).

Cited in Casey v. North Decatur Courtyards Condominium Ass'n, 213 Ga. App. 190 , 444 S.E.2d 361 (1994).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 29 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

Expenses for which condominium association may assess unit owners, 77 A.L.R.3d 1290.

44-3-81. Reallocation of interests in common elements, votes, and liability for common expenses.

  1. Interests in the common elements shall not be allocated to any units to be created within any additional property until plats or plans depicting the same are recorded pursuant to subsection (c) of Code Section 44-3-83. Upon the submission of any additional property, the declarant shall execute and record an amendment to the declaration reallocating undivided interests in the common elements, votes in the association, and liabilities for common expenses in the manner provided in the declaration.
  2. If all of a convertible space is converted into common elements, including, without limitation, limited common elements, the undivided interest in the common elements pertaining to such convertible space shall then pertain to the remaining units and shall be allocated among them in proportion to their undivided interests in the common elements. In the case of the conversion of all or any portion of any convertible space into one or more units or common elements, including, without limitation, limited common elements, the undivided interests in the common elements, the votes in the association, and the liability for common expenses shall be reallocated in the manner provided in the declaration. The declarant shall immediately prepare, execute, and record an amendment to the declaration effecting the reallocation of undivided interests produced thereby.
  3. In the case of a leasehold condominium, upon the expiration or termination of any leasehold or estate for years with respect to any land upon or within which any unit exists, every such unit together with all common elements located upon or within such leasehold or estate for years shall be deemed to have been withdrawn from the condominium unless the declaration provides for the termination of the condominium in such event. The undivided interest in the common elements pertaining to any unit thereby withdrawn from the condominium shall then pertain to the remaining units and shall be allocated among them in proportion to their undivided interests in the common elements. The association shall immediately prepare, execute, and record an amendment to the declaration effecting the reallocation of undivided interests produced thereby. In the case of the reduction of a condominium on account of the expiration or termination of a leasehold or estate for years, all votes attributable to any unit located upon such property immediately prior to such reduction shall thereby be eliminated; in addition, the liability for common expenses pertaining to any such unit shall be allocated to the remaining units in proportion to their relative liabilities for common expenses.

    (Ga. L. 1975, p. 609, § 18.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Condominiums and Cooperative Apartments, § 32 et seq. 23 Am. Jur. 2d, Deeds, § 221 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

44-3-82. Assignments and reassignments of limited common elements.

  1. All assignments and reassignments of limited common elements shall be made or provided for in the condominium instruments. No limited common element shall be assigned or reassigned except in accordance with this article. No amendment to any condominium instrument shall alter any rights or obligations with respect to any limited common element without the consent of all unit owners whose use of the limited common element is or may be directly affected by the assignment or reassignment, as evidenced by their execution of the amendment, except to the extent that the condominium instruments expressly provided otherwise prior to or simultaneously with the first assignment of the limited common element.
  2. Unless expressly prohibited by the condominium instruments, a limited common element may be reassigned upon written application to the association by the owners of units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned. The association shall immediately prepare and execute an amendment to the declaration reassigning all rights and obligations with respect to the limited common element involved. Such amendment shall be delivered immediately to the owners of the units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned and upon payment by them of all reasonable costs for the preparation, execution, and recordation thereof. The amendment shall become effective when the association and the owners of the units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned have executed and recorded the same. No vote of the unit owners shall be necessary for the amendment provided in this Code section to be executed by the association.
  3. A common element not previously assigned as a limited common element shall be so assigned only pursuant to the declaration.  The amendment to the declaration making such an assignment shall be prepared and executed by the association.  The amendment shall be delivered to the unit owner or owners to whose unit the assignment is being made upon payment by them of all reasonable costs for the preparation, execution, and recordation thereof.  The amendment shall become effective after execution by the association and such unit owner or owners and recordation, and the recordation thereof shall be conclusive evidence that the method prescribed pursuant to the declaration was adhered to.  Unless otherwise required by the condominium instruments, no vote of the unit owners shall be necessary for the amendment provided in this Code section to be executed by the association.

    (Ga. L. 1975, p. 609, § 19; Ga. L. 1990, p. 227, § 4; Ga. L. 1994, p. 1943, § 5.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Defining "common element" versus "limited common element." - External water spigots were not "limited common elements" because the spigots were not assigned as such in the condominium documents as required by O.C.G.A. § 44-3-82 . Since the spigots were not "limited common elements," use of the spigots could be restricted under O.C.G.A. § 44-3-76 to enforce condominium declarations. Frantz v. Piccadilly Place Condo. Ass'n, 278 Ga. 103 , 597 S.E.2d 354 (2004).

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

Exclusive use of courtyard. - Under O.C.G.A. § 44-3-82(a) , a title insurer could be found to have insured an exclusive interest in a condominium courtyard by the owners of Unit 5 only if the condominium declaration assigned the courtyard to Unit 5 as a limited common element; as the declaration did not do so, the title policy did not insure the unit owners for an exclusive interest in the courtyard. Anderson v. Commonwealth Land Title Ins. Co., 284 Ga. App. 572 , 644 S.E.2d 414 (2007).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments, §§ 1 et seq., 9 et seq. 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 29 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 6A C.J.S., Assignments, §§ 1 et seq., 123 et seq. 51C C.J.S., Landlord and Tenant, § 232.

44-3-83. Recording of plats and plans; contents; completion of structural improvements; certification by registered architect or engineer.

  1. Prior to the first conveyance of a condominium unit, there shall be recorded one or more plats of survey showing the location and dimensions of the submitted property; the location and dimensions of all structural improvements located on any portion of the submitted property; the intended location and dimensions of all contemplated structural improvements committed to be provided by the declaration on any portion of the submitted property; and, to the extent feasible, the location and dimensions of all easements appurtenant to the submitted property or otherwise submitted to this article as part of the common elements. With respect to all such structural improvements, the plats shall indicate which, if any, have not been begun by use of the phrase "NOT YET BEGUN." No structural improvement which contains or constitutes all or part of any unit or units and which is located on any portion of the submitted property shall be commenced on any portion of the submitted property after the recording of the plats. The declarant shall complete all structural improvements depicted on the plats, subject only to such limitations, if any, as may be expressly stated in the declaration with respect to those labeled "NOT YET BEGUN" on the plats, provided that, within six months after written notice from the association, the declarant shall be obligated to complete within a reasonable time every structural improvement actually commenced on the submitted property, notwithstanding any provision of the declaration, unless the declarant removes within a reasonable time all portions of any such structural improvement and restores the surface of the land affected thereby to substantially the same condition as that which existed prior to commencement of any such structural improvement; and provided, further, that nothing contained in this sentence shall exempt the declarant from any contractual liability to complete any such structural improvement. If the submitted property consists of noncontiguous parcels, the plats shall indicate the approximate distances between such parcels unless such information is disclosed in the declaration. If, with respect to any portion or portions, but less than all, of the submitted property, the unit owners are to own only a leasehold or estate for years, the plats shall show the location and dimensions of any such portion or portions and shall label each such portion by use of the phrase "LEASED LAND." To the extent feasible, the plats shall show all easements to which the submitted property or any portion thereof is subject. The plats shall also show all encroachments by or on any operation of the submitted property. In the case of any units which have vertical boundaries lying wholly or partially outside of structures for which plans pursuant to subsection (b) of this Code section are recorded, the plats shall show the location and dimensions of the vertical boundaries to the extent that they are not shown on the plans; and the units or portions thereof thus depicted shall bear their identifying numbers. Each plat shall be certified as to its accuracy and compliance with this subsection by a registered land surveyor. The specification within this subsection of items that shall be shown on the plats shall not be construed to mean that the plats shall not also show all other items customarily shown or required by law to be shown for land title surveys.
  2. There shall be recorded prior to the first conveyance of a condominium unit:
    1. Plans which have been prepared, signed, and sealed by a registered architect or registered engineer of every structure which contains or constitutes all or part of any unit or units located on or within any portion of the submitted property, which plans shall show:
      1. The location and dimensions of the exterior walls and roof of such structures;
      2. The walls, partitions, floors, and ceilings as constitute the horizontal boundaries, if any, and the vertical boundaries of each unit, including convertible space, to the extent that such boundaries lie within or coincide with the boundaries of such structures; and
      3. The identifying numbers of all units or portions thereof depicted on the plans; and
    2. A certification by such architect or engineer to the effect that he has visited the site and viewed the property and that, to the best of his knowledge, information, and belief:
      1. The exterior walls and roof of each structure are in place as shown on the plans; and
      2. Such walls, partitions, floors, and ceilings, to the extent shown on said plans, as constitute the horizontal boundaries, if any, and the vertical boundaries of each unit, including convertible space, have been sufficiently constructed so as to establish clearly the physical boundaries of such unit.

        In addition, each convertible space depicted in the plans shall be labeled as such by use of the phrase "CONVERTIBLE SPACE." Unless the condominium instruments expressly provide otherwise, it shall be presumed that, in the case of any unit not wholly contained within or constituting one or more of the structures, the horizontal boundaries extend, in the case of each unit, at the same elevation with regard to any part of such unit lying outside of such structures, subject to the following exception: in the case of any unit which does not lie over any other unit other than basement units, it shall be presumed that the lower horizontal boundary, if any, of that unit lies at the level of the ground with regard to any part of that unit lying outside of the structures. This subsection shall apply to any condominium created on or after July 1, 1980, or to the expansion of any such condominium.

        1. The foundation, structural members, exterior walls, and roof of each such structure are complete and in place as shown on the plans;
        2. The walls, partitions, floors, and ceilings, to the extent shown on the plans, as constituting or coinciding with the vertical and horizontal boundaries of each unit, including convertible space, within each such structure, are sufficiently complete and in place to establish clearly the physical boundaries of such unit and that such physical boundaries are as shown on the plans; and
        3. Each such structure, to the extent of its stage of completion at that time, is constructed substantially in accordance with such plans.

          The plans shall show the location and dimensions of the horizontal boundaries, if any, and the vertical boundaries of each unit to the extent that such boundaries lie within or coincide with the boundaries of such structures, and the units, or portions thereof, thus depicted shall bear their identifying numbers. In addition, each convertible space depicted in the plans shall be labeled as such by use of the phrase "CONVERTIBLE SPACE." Unless the condominium instruments expressly provide otherwise, it shall be presumed that, in the case of any unit not wholly contained within or constituting one or more of the structures, the horizontal boundaries extend, in the case of each unit, at the same elevation with regard to any part of such unit lying outside of such structures, subject to the following exception: in the case of any unit which does not lie over any other unit other than basement units, it shall be presumed that the lower horizontal boundary, if any, of that unit lies at the level of the ground with regard to any part of that unit lying outside of the structures. This subsection shall apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.

    (b.1) There shall be recorded prior to the first conveyance of a condominium unit plans of every structure which contains or constitutes all or part of any unit or units located on or within any portion of the submitted property and a certification by a registered architect or registered engineer to the effect that he has visited the site and viewed the property and that, to the best of his knowledge, information, and belief:

  3. Prior to the first conveyance of a condominium unit located on any portion of any additional property being or having been added to an expandable condominium, there shall be recorded new plats of survey conforming to the requirements of subsection (a) of this Code section and, with regard to any structures on the property being or having been added, plans conforming to the requirements of subsection (b) of this Code section or certifications, conforming to the certification requirements of subsection (b) of this Code section, of plans previously recorded pursuant to Code Section 44-3-84.
  4. When converting all or any portion of any convertible space into one or more units or limited common elements, the declarant shall record, with regard to the structure or portion thereof constituting that convertible space, plans showing the location and dimensions of the horizontal boundaries, if any, and the vertical boundaries of each unit formed out of such space. The plans shall be certified by a registered architect or registered engineer in accordance with the certification requirements of subsection (b) of this Code section.
  5. When any portion of the submitted property is withdrawn, there shall be recorded a plat or plats showing the portion of the submitted property withdrawn and the remaining submitted property, which plat or plats shall be certified as provided in subsection (a) of this Code section.

    (Ga. L. 1975, p. 609, § 20; Ga. L. 1980, p. 1406, § 3; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 3, § 33; Ga. L. 1984, p. 22, § 44.)

JUDICIAL DECISIONS

Applicability. - There was no merit to a condominium development buyer's argument that the third amendment to the declaration of condominium, which restricted building on Phase IV of the development to 30 units, was a nullity because it did not comply with O.C.G.A. § 44-3-83 ; the requirements of § 44-3-83 had to be met prior to the first conveyance of a unit, and as there was no evidence of any attempted conveyance of any of the proposed units in Phase IV, the buyer's contention was premature. Waterfront, LLP v. River Oaks Condo. Ass'n, 287 Ga. App. 442 , 651 S.E.2d 481 (2007), cert. denied, 2008 Ga. LEXIS 78 (Ga. 2008).

Subsequent use not misappropriation. - Subsequent use of architect's design plans by owners was authorized by the terms of their contract with the architects and was not a misappropriation. Wright v. Tidmore, 208 Ga. App. 150 , 430 S.E.2d 72 (1993).

Adaptation of plans not misappropriation. - Adaptation of plans in order to satisfy the requirements of subsection (b) of O.C.G.A. § 44-3-83 were minimal, and in no way plagiarized the mental labors of architects making the plans. Wright v. Tidmore, 208 Ga. App. 150 , 430 S.E.2d 72 (1993).

44-3-84. Use of previously recorded plans in lieu of new plans.

Plans previously recorded pursuant to subsection (b) of Code Section 44-3-77 may be used in lieu of new plans to satisfy in whole or in part the requirements of Code Section 44-3-89 if certifications thereof are recorded by the declarant in accordance with subsection (c) of Code Section 44-3-83.

(Ga. L. 1975, p. 609, § 21.)

44-3-85. Liability for failure to follow plats or plans; easements; liability for damage.

  1. The purpose of this Code section is to protect the unit owners, except in cases of willful and intentional misconduct by them or their agents or employees, and not to relieve the declarant or any contractor, subcontractor, or materialman of any liability which any of them may have by reason of any failure to adhere to the plats or plans.
  2. To the extent that any unit or common element encroaches on any other unit or common element, whether by reason of any deviation from the plats or plans in the construction, repair, renovation, restoration, or repair of any improvement or by reason of the settling or shifting of any land or improvement, a valid easement for such encroachment shall exist.
  3. The declarant and his duly authorized agents, representatives, and employees shall have an easement for the maintenance of sales offices and model units on the submitted property so long as the declarant owns any condominium unit primarily for the purpose of sale.